FPSLREB Decisions

Grievances referred to adjudication

1 Employees of the Canadian Food Inspection Agency ("the Agency" or "the employer") in the Veterinary Medicine Group bargaining unit referred ten grievances to adjudication. The employees ("the grievors") are veterinarians at the VM-01 or VM-02 level whose positions are located within the Meat Hygiene Section or the Animal Health Section in the Quebec region.

2 The grievors were required by the employer to attend training related to their veterinary duties outside their normal employment area. They requested compensation at the overtime rate for time spent, in excess of their regular work schedule, in training and in travelling between their residences and/or their accommodations and the training site.

3 The employer compensated the grievors for time devoted to training in excess of their normal hours of work, but refused to cover travel time between their residences and/or their accommodations and the training site. Some of the grievors were required to travel outside their normal work schedule, either before and after the training day or on their days of rest. The grievors decided to grieve the employer's refusal of compensation, hence this referral to adjudication.

4 It should be added that the employer authorized travel by the grievors in compliance with normal travel practices. Their travel expenses were covered under the Treasury Board Secretariat of Canada's Travel Directive.

5 The individual grievances were filed before April 1, 2005.

6 On April 1, 2005, the Public Service Labour Relations Act, enacted by section 2 of the Public Service Modernization Act, S.C. 2003, c. 22, was proclaimed in force. Pursuant to section 61 of the Public Service Modernization Act, these references to adjudication must be dealt with in accordance with the provisions of the Public Service Staff Relations Act, R.S.C. 1985, c. P-35 ("the former Act").

7 According to the transitional provisions of the Public Service Modernization Act, grievances filed under the former Act are referred to an adjudicator whose powers are those set out in the former Act.

II. Summary of the evidence

8 The parties tabled an agreed statement of facts, summarized briefly as follows:

          a. Yves Lamothe works in Rivière-du-Loup. He attended training in Winnipeg from February 3 to 12, 2004. He is requesting compensation for the 7.5 hours of travel to the training site and the 5.75 hours of the return trip. He is also requesting compensation for 30 minutes of travel time (15 minutes each way) between his hotel and the training centre for each training day, since he was required to share a vehicle rented by the Agency (Board File No. 166-32-35752).

          b. Claude Favreau works in St-Henri. He attended training at the Gare maritime de Québec from March 22 to 24, 2004. He is claiming compensation of one hour of travel to the training site on March 22, 2004 and another hour for the return trip home on March 24, 2004. That travel occurred outside his normal hours of work (Board File No. 166-32-35753).

          c. Katie Bernard works in St-Jean Baptiste. She attended training in Montréal from April 5 to 8, 2004. She is claiming compensation for the time spent traveling to and from Montréal outside her normal hours of work on those days (Board File No. 166-32-35754).

          d. Sonja Laurendeau works in Lévis. She attended training in St-Hyacinthe on February 26, 2004. She is claiming compensation for 1.5 hours of travel from St-Hyacinthe outside her normal work schedule (Board File No. 166-32-35755).

          e. Normand Bélair works in Vallée-Jonction. He attended training in St-Hyacinthe on Saturday, April 17, 2004, from 09:00 to 16:00. He is claiming compensation for 4 hours of travel time spent getting to the training location (3.5 hours spent travelling to temporary accommodation in Beloeil after his normal hours of work on Friday, April 16, and 0.5 hours for the trip from Beloeil to St-Hyacinthe), as well as 3 hours for the return trip home. Mr. Bélair has a day of rest on Saturdays (Board File No. 166-32-35756).

          f. Pâquerette Dufour works in St-Hénédine. She attended training in St-Hyacinthe on Saturday, April 17, 2004, from 09:00 to 16:00. She is requesting compensation for two hours of travel time between her place of residence and the training site on April 17, 2004, as well as an additional two hours on the same day for the return trip home. Ms. Dufour has a day of rest on Saturdays (Board File No. 166-32-35757).

          g. Carl Gagnon works in St-Hyacinthe. He attended training in Winnipeg from February 3 to 12, 2004. He is requesting compensation for 30 minutes of travel time (15 minutes each way) between his hotel and the training site for each day of training, since he was required to share a vehicle rented by the Agency (Board File No. 166-32-35758).

          h. Karine Nadeau works in Lévis. She attended training in Winnipeg from February 3 to 12, 2004. She is claiming 4.25 hours of travel time to the training site on February 2 and 0.25 hours for the return trip on February 13, 2004. She is also requesting compensation for 30 minutes of travel time (15 minutes each way) between her hotel and the training centre for each day of training, since she was required to share a vehicle rented by the Agency (Board File No. 166-32-35759).

          i. Jocelyne Gauthier works in St-Henri. She attended training in St-Hyacinthe on Saturday, April 17, 2004, from 09:00 to 16:00. She is requesting compensation for two hours of travel time between her place of residence and the training site on April 17, 2004, as well as an additional two hours on the same day for the return trip home. Ms. Gauthier has a day of rest on Saturdays (Board File No. 166-32-35760).

          j. Hélène Gagnon works in Rimouski. She attended training in Montréal from February 9 to 13, 2004. She is claiming 3.5 hours of travel time between her place of residence and the training site on Sunday, February 8, 2004, as well as an additional 5.25 hours for the return trip home on Saturday, February 14, 2004. Saturdays and Sundays are days of rest for Ms. Gagnon (Board File No. 166-32-35761).

9 A single witness was heard, Michel Gingras, negotiator for the Professional Institute of the Public Service of Canada ("the Institute").

10 Mr. Gingras, as spokesperson, has represented the Institute in collective bargaining since the Agency became a separate employer in 1999. He negotiated the collective agreement under which these grievances were filed (that expired September 30, 2003, "the 2003 collective agreement") and that was still in effect when they were filed in March 2004. When the 2003 collective agreement was negotiated, clause B7.08 remained unchanged as neither party raised any issues about its interpretation. Apparently, the wording of clause B7.08 (since renumbered to B8.08) was amended in the most recent collective agreement to take into account the issues being grieved.

11 The dispute surrounding the interpretation of clause B7.08 arose as a result of an email (Exhibit P-4) dated December 23, 2003 from the Human Resources Branch claiming to accurately interpret the 2003 collective agreement with respect to compensation for overtime and for travel time required to attend courses:

[Translation]

…

Compensation for overtime and/or travel time required to attend courses

The purpose of this memorandum is to ensure consistent interpretation of collective agreements.

…

Several staff members have recently attended training on SCOMP/MCOMP, a reference manual for managers. There seems to be some confusion with regard to compensation for overtime and/or travel time required to attend training.

…

Mandatory training means any training required by the employer to be undertaken by employees in order to perform the current duties of their positions or to respond to future needs foreseen by the employer.

…

For PSAC employees, the clauses of the collective agreement state that they are not entitled to compensation for overtime on days devoted entirely to training. However, if they perform their usual duties during normal working hours, they are entitled to compensation at the overtime rate for hours of training following their eight (8) hour workday. In other words, employees are not entitled to overtime pay on days when they are engaged only in training.

…

Furthermore, under clause 33.06, compensation shall not be paid for time spent travelling to courses or training sessions unless the employee is required to attend by the Employer.

…

Under the PIPSC (VM/S&A) (IN) collective agreements, employees shall not be paid overtime nor be compensated for time spent travelling to courses or training sessions.

…

This interpretation of the clauses of the collective agreement takes effect immediately.

…

12 On January 26, 2004, Mr. Gingras responded to that email in an email addressed to the Agency's staff relations manager, in which he pointed out that the employer's current interpretation of the clause dealing with travel time and overtime required for attending courses was quite different from a prior interpretation pertaining to the same or similar courses. Mr. Gingras attached a document to his email dated January 16, 2003 in which the employer, through Mr. Hillier, the Agency's vice-president of operations, agreed to pay compensation for overtime and travel time required for attendance at mandatory training provided in Winnipeg from February 4 to 11, 2003:

…

Several weeks ago you sent Larry a message about the FAD course and OT entitlements. I know this was followed up on as Larry discussed this with the ED's (myself included).

…

The National Training Section will be issuing instructions that will be virtually the same as last year - at least that is my understanding ie OT to be paid for the two evening presentations (with the exception of the actual banquet) and the travel in excess of the normal workday (to and from the lab).

…

I am hopeful that National Training will have this out very shortly and certainly include this in the info to participants in advance of the course.

…

13 Mr. Gingras added that, contrary to past practice, the employer did not consult the bargaining agent before announcing its most recent interpretation of the 2003 collective agreement. He argued that, in the past, the employer considered that employees who attended mandatory training courses were deemed to be on government business and were thus entitled to the same compensation for overtime and travel time as would be provided for a normal workday. Consequently, no grievance had ever been filed with respect to compensation for overtime or travel time.

14 Mr. Gingras' testimony was not rebutted. The employer called no witnesses.

III. Summary of the arguments

A. For the grievors

15 The grievors argued that the employer unilaterally changed the previous interpretation of clause B7.08 of the 2003 collective agreement.

16 Attendance at training courses at the employer's request differs from career development, for which employees are authorized to take leave with pay in order to improve their professional skills. The grievors felt that they should be considered to be on the job during mandatory training given that they are likely to incur sanctions should they choose not to attend.

17 The fact that the employer had previously made known its refusal to pay for travel time does not suspend the application of the 2003 collective agreement to employees who have no choice but to attend training as directed.

18 Absent evidence to the contrary provided by the employer, the grievors argued that Mr. Gingras made the following valid points in his testimony:

1. Travel time to attend training at the employer's request was compensated in the past, as shown by Mr. Bill Teeter's memorandum on training provided in 2003 and by the identical practice having been implemented the previous year.
2. Clause B7.08 was renewed on several occasions without amendment due to the employer's past practice of providing compensation for travel time to attend mandatory training.
3. Clause B7.08 (renumbered B8.08) was clarified during the most recent negotiations to take into account the employer's position on these grievances.

19 The principles of estoppel apply to the facts of this case. In the past, the employer deemed training periods to be hours of work and compensated overtime and travel time, and the issue was never raised prior to the filing of the current grievances. Given this interpretation, the bargaining agent, to its own detriment, never attempted to amend the provisions of the collective agreement to resolve the situation.

20 The doctrine of unjust enrichment also applies to the circumstances of this case. An employer who requires that employees give up their own time for the employer's benefit, while providing no compensation, is made richer to the detriment of the employees involved, who are correlatively made poorer, though there is no legal basis for such an imbalance.

21 The grievors argued that they should be compensated for travel time between their accommodations and the training site given that, over this period, the employer controlled the use of their time as of the moment they began to travel to and from the site and during the time they spent travelling, whereas they would otherwise have been at liberty to travel to the training site by their own means. This factor was deemed to warrant compensation of time thus spent as demonstrated by the jurisprudence.

22 Despite the Human Resources Branch's claim, there was no confusion in the past surrounding the payment of overtime and/or travel time required to attend training. On the contrary, Mr. Teeter's memorandum on the course offered in Winnipeg in 2003 refers to the past practice of compensating civil servants for travel required to attend mandatory training.

23 The bargaining agent cited the following decisions in support of its position: Leroux v. Treasury Board (Revenue Canada - Customs and Excise), PSSRB File No. 166-2-23192 (19940516); Ménard v. Canada (F.C.A.), [1992] F.C.J. 624; Lapierre v. Treasury Board (Veterans Affairs Canada), PSSRB File No. 166-2-22301 (19930415); Lévesque v. Treasury Board (Fisheries and Oceans - Canadian Coast Guard), PSSRB File No. 166-2-27426 (19970718); Chicorelli v. Treasury Board (National Defence), PSSRB File No. 166-2-23844 (19940114); and Landry v. Library of Parliament, PSSRB File Nos. 466-LP-213 and 466-LP-214 (19930518).

B. For the employer

24 The employer maintains that clause B7.08 of the 2003 collective agreement is unequivocal. Compensation shall not be provided for travel time required to attend training sessions. The 2003 collective agreement makes no distinction among types of courses. Time spent on training is not to be compared to work time and, consequently, under the 2003 collective agreement, travel time shall not be compensated.

25 Compensation for travel time to attend the course in Winnipeg in 2003 was specific to that training session. This exception does not justify compensation for travel time to attend all future training. One exception does not constitute the norm. In the case of the training provided in 2004, the employer clearly stated its interpretation of the 2003 collective agreement before the attendance of the grievors, who were not misled.

26 The collective agreement does not cover travel time between the accommodations and the training site. This time is never compensated, because it is equivalent to the time spent travelling to work. I should only consider travel as envisaged by the 2003 collective agreement.

27 No grievor provided testimony to support the position that travelling outside one's normal employment area is detrimental or that the grievors were otherwise burdened financially due to their travel time. Nor did the employer gain from the situation. On the contrary, the grievors derived a personal benefit from their attendance at training.

28 The employer argued that the grievors were interpreting the 2003 collective agreement within the scope of this adjudication based on the provisions of the new agreement negotiated after the events under review had occurred. The employer did not agree that the amendment to clause B7.08 (now clause B8.08), which now makes a distinction between training requested by the employer and career development, merely confirms a past practice. This is a major change obtained at the bargaining table the last time that the collective agreement was renewed.

29 The employer cited the following decisions in support of its position: Mayoh et al. v. Treasury Board (Regional Economic Expansion), PSSRB File No. 166-02-8896-8914 (19801205); Hunt v. Treasury Board (Fisheries and Oceans Canada), PSSRB File No. 166-2-15797 (19860904); R.R. Widdifield v. Treasury Board (National Defence),PSSRB File No. 166-2-21423 (19911024); and Lichter v. Treasury Board (Health and Welfare Canada), PSSRB File No. 166-2-17086 (19871026).

IV. Reasons

30 Taking into account the provisions of the 2003 collective agreement, the arguments of the parties and the evidence before me, I believe the grievances must be allowed for the reasons that follow.

31 Clause B7.08 of the 2003 collective agreement reads as follows:

…

Compensation under this Article shall not be paid for travel time to courses, training sessions, conferences and seminars unless so provided for in the Article 18, Career Development.

…

32 At first glance, this clause is unequivocal. Employees who travel to attend courses or training sessions are not entitled to compensation for their travel time. However, I believe that, in the context of grievances under review, the employer created an exception in the case of employees who are required to attend training.

33 In its response to all of the grievances at the third level of the grievance procedure, the employer recognized that the training session was mandatory: "[translation]… at your supervisor's request, you were required to travel to attend a training session related to your veterinary duties. Though I recognize you were required to attend this training session …"

34 Furthermore, the grievors were authorized to travel to attend these activities and their expenses were covered as a work situation. The purpose of the training was to increase their professional skills in their field as veterinarians and was mandatory for this reason.

35 Though attendance at training courses is not an ongoing duty of a veterinarian, such attendance is not foreign to the work of civil servants, who are required to update their knowledge on an ongoing basis in order to perform their duties. This is demonstrated by the testimony of Mr. Gingras and the exhibits showing that this occupational group is scheduled for training annually.

36 In my opinion, there were two consequences to the employer's decision to have the employees attend training. The first was to recognize that such training was tantamount to work for compensation purposes; the second was to accept that employees should be compensated under the rules that apply to any other type of work-related travel. In this particular case, by accepting to compensate employees for hours of training exceeding their regular work schedule, the employer specifically recognized that training was akin to work. The employer is now being inconsistent in dissociating travel time from this observation by referring to other provisions of the collective agreement that prohibit the compensation of travel time required for attendance at training. Since training constitutes work, travel to and from the training site is one consequence of the employer's decision to have employees attend training. The grievors are therefore entitled to compensation for their travel under the same conditions as those that apply to government business.

37 It should also be emphasized that, when the employer made known its refusal to compensate employees for travel time, it did not offer the grievors the choice of attending training or not, despite the new conditions governing their travel for this purpose. Consequently, the grievors had no choice but to comply with the employer's request to attend training and to file grievances, according to the maxim: "Obey now, complain later."

38 I also take into account the idea that compensating travel time required for learning activities is not a practice entirely divorced from the procedures normally followed by the employer when it sends staff members to take part in activities aimed at upgrading their knowledge or promoting knowledge development in the discipline related to their duties.

39 For example, clause C19.02(d) of the 2003 collective agreement ("Career Development") states that an employee who attends a conference to represent the interests of the Employer shall be deemed to be on duty and, as required, in travel status, whereas clause C19.02(f) provides for compensation on an exception basis for overtime required, as the case may be, for the employee to travel to or from such an event. The provisions read as follows:

…

d) An employee who attends a conference or convention at the request of the Employer to represent the interests of the Employer shall be deemed to be on duty and, as required, in travel status. The Employer shall pay the registration fees of the convention or conference the employee is required to attend.

…

f) An employee shall be not entitled to any compensation under Articles B3 (Overtime) and B7 (Travelling Time) in respect of hours such employee is in attendance at or travelling to or from a conference or a convention under the provisions of this clause, except as provided by paragraph (d).

…

[Emphasis added]

40 Although the 2003 collective agreement does not define the word "conference" nor the phrase "to represent the interests of the Employer," it is not unreasonable to compare the conditions in which an employee attends a conference to represent the employer's interests to those in which he or she attends training at the employer's request. In both cases, the fact that the employer consents to provide compensation for overtime and travel time implies that the purpose of the employee's attendance is to improve the quality of his or her work and to enable him or her to better perform his or her duties, which, in turn, allows the employer to provide better-quality services to its clients.

41 While I have not determined that the provisions of clauses C19.02(d) and (f) of the 2003 collective agreement apply to this situation, I believe that the above analogy provides justification, in the case of the grievances under review, of conditions parallel to those in which the employer normally consents to compensate travel time required for learning activities when they are in its best interest.

42 With respect to the grievors' travel between their accommodations and the training centre, in cases where the employer determines the mode of transport as well as the times of departure and return, I also believe that such time should be compensated. The time that employees spend travelling from their residences to their workplaces differs from the time they spend travelling to a training activity according to a schedule set by the employer. In the first instance, employees are free to decide how they will use their time and to travel as they deem best according to their own constraints. In the second instance, employees must comply with the time of departure and travel time as determined by the employer and cannot choose to act otherwise. They are at the complete disposal of the employer during that time.

43 Whether the issue is travel time required to attend training or travel between a place of accommodation and a training site, I found particularly convincing the decision of the Public Service Staff Relations Board in Landry, the facts of which are similar to those of these grievances. In this particular case, the adjudicator found that travel time required to attend a course at the employer's request should be compensated for the following reasons:

…

In examining the question of whether an employee is performing work, one must ask who controls the use of the employee's personal time. If, in a given situation, the employer exercises this control, it can only do so in return for compensation. In fact, it seems to me that any other conclusion would be tantamount to saying that, despite the time agreed upon in the collective agreement, an employer could dictate the use that an employee makes of his personal time (in this case Saturday and Sunday) without, however, having to compensate the employee accordingly. At this rate, an employer could require an employee to travel every Sunday for six months to take a training course on Monday without having to compensate the employee in return, in total disregard of a provision of the collective agreement that recognizes an employee's right to two days' rest.

…

One cannot equate the time required to travel to a course taken at an employer's request with the time it takes an employee to travel to work. In the former case, the employee is not the master of his time and travels in order to meet a requirement of the employer, whereas in the latter case, the employee is the master of his time and can use it as he sees fit, i.e., he can choose to travel to work and then return home or he can do any other thing of his own choosing.

…

In agreeing to work for a particular employer, an individual agrees to put his personal time under the employer's control, in return for compensation agreed upon in the collective agreement and paid according to the number of hours of personal time that this individual surrenders in order to perform, in accordance with the employer's directives, the work that will be required of him…

…

44 In my estimation, the following decisions cited by the parties are not as conclusive as that of Landry:in Leroux, the employer reversed its decision after two weeks and refused to cover the travel expenses of a grievor who was taking language training; in Lévesque, the employer amended the policy under which it maintained officers' cabins aboard ships; and in Chicorelli, the grievor was compensated for overtime required to attend mandatory training. The following decisions did not convince me that the employer's position was well-founded: Mayoh et al., in which the employer's policy was more generous than the collective agreement and, by way of consequence, the grievor was not entitled to compensation for travel time; Hunt, in which the grievor was not entitled to the overtime rate because the work performed was not part of his duties; Widdifield, in which the grievor was not entitled to the overtime rate for time taken to plan his trip while on travel status; and Lichter, in which the grievor was not entitled to the overtime rate for the time required to travel to her normal employment region because she was travelling and was not working during that time.

45 As to the estoppel argument made by the bargaining agent, I believe this principle does not apply to this case due to lack of evidence that the grievors agreed to attend training on the strength of claims made by the employer of its intent to compensate them for their travel time. As well, the provisions of the collective agreement have now resolved any ambiguity respecting compensation for travel expenses incurred to attend mandatory training. Based on my conclusions regarding these grievances, the issue of latent ambiguity and the application of the unjust enrichment doctrine have been shown to the unfounded.

46 The parties shall achieve agreement on the amount of remedy. However, I shall remain seized of the matter for 60 days in the event that the parties cannot agree.

47 For all of the above reasons, I make the following order:

V. Order

48 The grievances are allowed.

June 7, 2007.
P.S.L.R.B. Translation

Michele A. Pineau,
adjudicator