FPSLREB Decisions

I. Individual grievances referred to adjudication

1 This case concerns eight interpretation grievances involving clause 25.08 of the collective agreement between the Canada Customs and Revenue Agency (now the Canada Revenue Agency (CRA or “the employer”)) and the Public Service Alliance of Canada (PSAC or “the bargaining agent”) for the Program Delivery and Administrative Services Group, which expired October 31, 2007 (“the collective agreement”). Clause 25.08 reads in both official languages as follows:

Subject to operational requirements, an employee on day work shall have the right to select and request flexible hours between 7 a.m. and 6 p.m. and such request shall not be unreasonably denied.

…

Sous réserve des nécessités du service, l'employé-e qui travaille de jour a le droit de demander de travailler selon un horaire mobile allant de 7 h à 18 h, aux heures que l'employé-e choisit, et cette demande ne peut être refusée sans motif valable.

2 On the first day of the hearing, the bargaining agent representative advised that grievance PSLRB File No. 566-34-2815 (Lorraine Civitaresse) had been withdrawn.

3 All of the grievors made written requests to their respective supervisors asking to change their 7:30 a.m. start time to a start time of 7:00 a.m. The grievors work in the Taxation Services Offices (TSO) of Hamilton and Windsor, Ontario.

4 All requests were denied based on operational requirements. Hours of work were to be scheduled between 7:30 a.m. and 5:00 p.m.

II. Summary of the evidence

A. For the bargaining agent

5 In his opening remarks, the bargaining agent representative indicated that the language of clause 25.08 of the collective agreement was mandatory in two respects as follows: 1) “… an employee on day work shall have the right to select and request flexible hours between 7:00 a.m. and 6:00 p.m… ” and 2) “… such request shall not be unreasonably denied.”

6 The bargaining agent representative added that the language of clause 25.08 of the collective agreement was clear and that the employer had unreasonably denied the grievors’ requests to change their start time to 7:00 a.m.

7 The first witness for the bargaining agent was Pam Howick, a Windsor TSO employee who works in the Enforcement Division and who testified that she had worked a compressed schedule for several years. That compressed schedule included a 7:00 a.m. start time to 4:30 p.m. end time on Mondays and Wednesdays. On Tuesdays, Thursdays and Fridays, she worked from an 8:30 a.m. to 5:00 p.m.

8 Ms. Howick stated that she has been starting work at 7:30 a.m. since the new hours of work for all day employees at Windsor were reaffirmed in February 2007.

9 Ms. Howick is an investigator (classified SP-07) in the TSO’s Enforcement Division and is part of the Criminal Investigation Program assisting Crown counsel in prosecuting tax fraud schemes. Part of her responsibilities is preparing counsel with relevant information, documents and material and testifying as a Crown witness.

10 As part of her work and particularly her investigations, Ms. Howick must deal with the public, both directly in meetings and by making telephone calls related to her work.

11 An example of the health and safety and security concerns of employees is detailed as follows at page 9 of Ms. Howick’s job description, under the heading “Work Environment”:

…

The work involves exposure to irate, hostile, threatening and abusive individuals and/or their representatives during the conduct of the audit or during the execution of search warrants and the conduct of the investigation.

…

12 When meetings are held on TSO property, security surveillance is increased in and around the area to minimize potential risks to the health and safety and security of TSO employees.

13 Through Ms. Howick, the bargaining agent introduced into evidence Exhibit U-6, a document from the office of the Windsor TSO’s director entitled “Hours of Work Directive to all TSO Employees” that reaffirms the 7:30 a.m. start time:

From the office of Michael A. Spencer

Memorandum to all TSO Employees   Date: February 23, 2007

Subject: Hours of Work

The scheduled hours of work for the Windsor TSO are between the hours of 7:30 a.m. and 5:00 p.m. These hours have been in place for a number of years, however, recent situations have convinced me that additional clarification may be needed.

When establishing the scheduled hours of work, a number of factors must be considered. Some of these factors include:

1. The Canada Labour Code (i.e. presence of first aid attendants)
2. Presence of on-site supervision
3. Security of staff and assets of the Agency
4. Operational requirements – Delivery of programs to Canadian public

Accordingly, effective March 5, 2007, your individual access cards will permit entry to this building only between the hours of 7:15 a.m. and 5:15 p.m., Monday to Friday. Please remember that your access cards must be safeguarded at all times.

Should you require management assistance prior to the arrival of your own immediate supervisor, you can contact one of the team leaders noted below, who are scheduled to be in the office at 7:15 a.m.:

• Gary Elligson, 3^rd floor – extension 6508
• John Mills, 2^nd floor – extension 6354
• Bruna Martire, 4^th floor – extension 6449
• Denise D’Angela, 6^th floor – extension 6677

In compliance with the Canada Labour Code, when overtime hours are scheduled, supervision and first aid attendants will be on site.

Should you have any questions, please contact your immediate supervisor.

14 Also introduced into evidence through Ms. Howick was Exhibit U-7, “Working Alone During Silent Hours,” signed jointly by Lysanne M. Gauvin, Management Co-Chair of the National Health and Safety Policy Committee and Betty Bannon, bargaining agent Co-Chair of the same committee and dated November 21, 2005. Exhibit U-7 is a national communication that was issued by the CRA and that was addressed to assistant commissioners, directors general, directors, TSO directors, tax centres, regional human resources directors, and regional occupational safety and health advisors.

15 “Silent hours” refers to situations in which employees work outside regular office hours, either during the normal workweek or on weekends.

16 In Ms. Howick’s division (the Enforcement Division) a swipe card is required to enter the building in Windsor. One must swipe again to enter the elevators. The third floor, where the Enforcement Division is located, has an alarm system inside the doors of Ms. Howick’s section.

17 In cross-examination, Ms. Howick specified that her division has separate and distinct security from other divisions in the Windsor TSO.

18 Still in cross-examination, Ms. Howick indicated that the team leaders in her section were flexible in changing schedules at employees’ request.

19 Also in the same context, Ms. Howick confirmed that, from 2003 to February 2007, she always worked a compressed workweek as evidenced by the approval forms in Exhibit U-3.

20 In concluding her testimony, she indicated that she was qualified in first aid (a “first aider”) but that she was no longer available in that capacity.

21 Finally, Ms. Howick stated that she could do her job beginning at 7:00 a.m.

22 The bargaining agent’s second witness was Kristine Pinkney, a Windsor TSO employee in the Collection Division, which is composed of 11 teams totalling 153 employees, including Ms. Pinkney.

23 Ms. Pinkney indicated that she works with the general public for less than 50 percent of her time. In addition, she interacts with her colleagues in other areas of the Windsor TSO for requested information. She receives assistance and guidance from supervisors.

24 In Ms. Pinkney’s opinion, she can easily do her job beginning at 7:00 a.m. because, at the beginning of the day, she has a lot of paperwork to handle in addition to making her calls.

25 In cross-examination, Ms. Pinkney clarified her earlier statement that she spends less than 50 percent of her workday with the general public by confirming that on some days she works with the public for 85 percent of her workday and that, on other days, her work with the public can be as little as 10 percent of her day's work.

26 In the past 10 years, she has had an active role in the union, has been aware of most of the issues at the Windsor TSO, and has been an active member of the Occupational Health and Safety Committee.

27 Ms. Pinkney confirmed that she worked compressed weeks before February 2007. She also stated that employees on compressed work schedules wanted to start at 7:00 a.m.

28 In cross-examination, Ms. Pinkney revealed that she had had discussions with her supervisors in 2006 about employees' concerns on coming to work before 7:30 a.m. One of the concerns was the availability of first aiders. Other concerns were security supervision.

29 Ms. Pinkney confirmed that she was aware of the Canada Labour Code, R.S.C. 1985, c. L-2(“the Code”), health and safety provisions and the respective responsibilities and obligations of the parties. She also confirmed her awareness of the Criminal Code, R.S.C. 1985 c. C-46, that apply to matters of health and safety in the workplace.

30 Ms. Pinkney confirmed that she was not surprised when she received the Hours of Work Directive because its content had been informally discussed previously with union representatives.

31 Ms. Pinkney, in the context of her explanation and comments about the silent Hours document, recognized that management has the right to establish and modify hours of work subject to the collective agreement.

32 The content of those documents and others relating to hours of work were all discussed on a regular basis as part of the Union Management Initiatives (UMI) Committee, of which Ms. Pinkney was an active member. At joint consultative meetings, both bargaining agent and management exchanged and developed valuable information about the issues of interest to the parties, such as TSO hours and health and safety. All issues were developed and discussed jointly and openly.

33 Finally, in cross-examination, Ms. Pinkney acknowledged that hours of work were a regular subject of discussion. The minutes of a meeting held on November 10, 2004 (Exhibit E-8), at page 3, in the first paragraph note that it was discussed. “The office hours are from 7:30 a.m. to 5:00 p.m.; therefore, employees' hours of work must be between those hours… .”

34 The third witness for the bargaining agent was Jim Jenks, a 19-year employee at the Hamilton TSO. Since June 2006, he has been a senior office auditor, and his key activities are auditing small businesses and the expenses of individuals.

35 Mr. Jenks has been on a 7:30 a.m. starting schedule since 2005.

36 He referred to the Hours of Work Policy, dated July 2003, which establishes the core hours of work for all Hamilton CRA employees, with a start time of 7:30 a.m.

37 He also introduced Exhibit U-12, which is a work description for senior office auditors. It describes the key activities of his different functions and the required responsibilities and skills for efficient performance.

38 At page two it states that the auditor “… audits and examines taxpayers’ returns, books, records, taxpayer reports, and supporting documents, to verify, confirm, and enforce compliance with the statutes administered by the CRA.”

39 It further specifies that the auditor “… prepares working papers, letters and reports to support work completed and discusses proposed (re)assessments, penalty and interest/documentations, technical and contentious issues with taxpayers and/or their representatives.”

40 It states as follows at page four that the auditor

 … obtains and provides information, advice, options and recommendations, explanations, instructions and directions regarding tax legislation, audit/examination concerns, adjustments and conclusions to/from taxpayers and their representatives, CRA employees and others, such as Department of Justice lawyers. Some tax issues may require a negotiated settlement. The level of difficulty increases when dealing with taxpayers who sometimes lack technical knowledge and/or are confrontational or have little knowledge of the transactions under review.

41 It also states as follows that the auditor must

… convey tax information that is sometimes complex during interviews with taxpayers and persuade taxpayers or representatives that the adjustments are correct. Taxpayers often have a different view and auditors/examiners must defend the CRA’s position using language adapted to the knowledge level of the taxpayer/representative. He provides interpretations and clarifications to taxpayers and representatives, with the goal of mutual agreement concerning audit results. He provides guidance to the taxpayers on the maintenance of books and records concerning which information to retain and the length of time it should be kept in future tax returns, enhances compliance and facilitates subsequent audits.

42 In cross-examination, Mr. Jenks indicated that no taxpayer or taxpayer representative had asked him for a meeting before 7:30 a.m.

B. For the employer

43 In her opening remarks, counsel for the employer indicated that the facts and factors creating the necessary environment for operational requirements may well differ and in many cases do differ between TSO’s.

44 Counsel for the employer indicated that the right created by the provisions of clause 25.08 of the collective agreement is not the right to work those hours but a right to request and obtain approval to work those hours. Furthermore, those rights are subject to operational requirements. Also, the request should not be unreasonably denied.

45 Counsel for the employer emphasized that, despite the collective agreement applying nationally, the directors of two separate TSOs have in this case outlined their considerations and factors in determining the office hours for their respective TSOs.

46 On that point, counsel for the employer indicated that she would show that, in spite of different structures at the Windsor and Hamilton TSOs, many of the factors are properly within the scope of what each TSO director has determined and are within the scope of each location’s operational requirements.

47 Counsel for the employer also acknowledged an approved past practice in Windsor for two employees, namely Ms. Howick and Ms. Pinkney, for a starting time before 7:30 a.m.

48 However, counsel for the employer pointed out that no other Windsor TSO employee has established in evidence any such past practice. With respect to the Hamilton TSO, there is no evidence of a past practice of an employee starting work before 7:30 a.m.

49 The first witness for the employer was Jim Durling. He started with the CRA in 1974 and has worked for more than 35 years in different TSOs in Ontario as a management executive and was acting director of the Windsor TSO until his retirement on June 19, 2009.

50 Mr. Durling was the assistant director in the Belleville TSO from 1988 to 1991. At that location, the working hours were between 7:30 a.m. and 5:00 p.m.

51 His testimony was that for London, Thunder Bay and all the Southern Ontario Region, working hours were between 7:30 a.m. and 5:00 p.m. for a variety of reasons and factors characterized broadly as being operational requirements and efficiency.

52 Mr. Durling testified that the access hours for the general public at the Windsor TSO are from 8:15 a.m. to 4:30 p.m. In addition to the hours for the general public, other people from headquarters and taxpayers can make appointments at the Windsor TSO beginning at 7:30 a.m. Visiting taxpayers are met by the commissionaires, who advise the appropriate employees in the TSO to meet their guests on the first floor.

53 Mr. Durling produced Exhibit E-8, dated November 9, 2004, Exhibit E-9 dated July 16, 2003 and referred to Exhibit U-6 dated February 23, 2007, written by the director of the Windsor TSO, Michael Spencer. All three exhibits clearly indicate a long-standing 7:30 a.m. start time for Windsor TSO employees. The Hours of Work Policy for Hamilton (Exhibit E-9), dated July 16, 2003, is reproduced below:

HAMILTON CCRA - …
HOURS OF WORK POLICY

As employees of the Hamilton CCRA, we are collectively responsible and accountable for upholding the Agency’s mandate to provide our clients (internal and external alike) with the fair, timely and quality service to which they are entitled. One of the most important means in achieving this goal is to ensure that an adequate number of staff is available to provide this service at the time when it is needed, i.e. during the office’s hours of operation, 8:15 a.m. – 5:00 p.m.

Core Hours of Work

In order to meet the personal needs of the majority of our employees and to maintain our commitment of quality service to our clients, the core hours of work for the staff of the Hamilton CCRA at 55 Bay Street and 120 King St. West are established as 7:30 a.m. – 5:00 p.m.The hours of work of all employees are to be scheduled within this time frame with each division ensuring that an adequate number of staff is available to internal and external clients during the office’s hours of operation, 8:15 a.m. – 5:00 p.m.

Operational Requirements

Operational requirements, as established by the management team of the division, will determine the start time and leave time (hours of work) of the employees working within that division. The term “operational requirements” is defined as – the work that needs to be done based on the available resources within the required time frames. It is based on factors such as – the number of employees, the nature of the work, the degree of workload planning and scheduling involved, the type of clients and their hours of availability.

Differences in operational requirements exist amongst the various divisions within the Hamilton CCRA. As a result, more employees in one division may be scheduled by necessity to work certain hours than in another division.

Management Presence

To ensure that a safe and healthy working environment is maintained for employees at all times, it is imperative that an adequate level of supervisory staff be available to all employees per floor during the core hours of work. The Assistant Director must ensure that there is a management presence during and outside the office’s hours of operation for which their employees have been authorized to work. Each division will determine the minimum requirement of supervisory presence.

Flexibility

In order to meet the changing needs of our operations and/or clients, we must recognize the importance of being flexible. In some circumstances, it will be necessary for employees to change their hours of work or compressed days off to accommodate training, meetings and/or appointments with clients. Whenever feasible, the supervising manager will provide advance notice to employees on compressed schedules or variable hours to ensure their availability.

Should there be extenuating circumstances in which an employee and the client need to meet outside the office’s hours of operation and within the employee’s hours of work, the supervising manager must authorize these situations.

Should employees require ‘after hours’ access, the team leader/manager must advise ATS via e-mail or by completing the ‘after hours’ access form authorizing extended access for the employee.

54 The contents of those exhibits were published and discussed with all employees, including the grievors, and officially introduced by management following lengthy consultations between the parties’ representatives.

55 On January 12, 2007, at Mr. Spencer’s request, Doug Fleming made a survey of hours of operations. The results are in Exhibit E-12. They established that, with few exceptions, the workday in Ontario within CRA started at 7:30 a.m. One of the exceptions, due to operational requirements, is the Ontario Call Centre, which operates from 7:00 a.m. to 11:00 p.m. According to Bert Strawberry of the call centre:

… [w]e have a national workload that covers all time zones. Agents are scheduled on an 8-week cycle based on business requirements. We do take into consideration preferred shifts and allocate them as fairly as possible. We do not have flexible hours or compressed schedules. Supervisors are scheduled for the same hours of work.

56 Mr. Durling testified that the regular and core hours for employees are identical, from 7:30 a.m. to 5:00 p.m., Monday to Friday.

57 The CRA issued a memorandum on silent hours (hours worked outside regular hours) in November 2005 that was signed by both the union and the management. The CRA raised serious concerns for the safety and health of employees working alone again on February 20, 2006 in an advisory notice that Mr. Durling presented in Exhibit E-1.

58 This advisory notice expresses CRA’s concern:

Advisory notice

Concerns have been expressed regarding the safety and well-being of employees who are required to work alone in situations where, in the event of serious injury or other emergency, the required assistance may not be readily available for the affected employee.

This advisory notice is to advise departments and agencies of the need to be aware of the precautionary and protective measures which may be required in respect of the safety of employees working alone, and to develop measures which are devised to provide assistance to those employees where and when required.

Local joint occupational safety and health committees should carefully review the various situations where employees are required to work alone, and make recommendations concerning the most reliable and practicable means of providing the required assistance to those employees, who may be subject to a significant risk or hazard.

In this regard, items that should be reviewed include:

a.  a review of the work procedures and processes carried out in a “working alone” situation;

b. the adequacy of equipment and procedures used in the particular situation;

c.  the adequacy of emergency support systems and monitoring mechanisms;

d.  the adequacy of employee training and information respecting the use of survival equipment, protective equipment and clothing, and the use of communication or supervising systems.

A number of Public Service Occupational Health and Safety Standards already incorporate specific references concerning the safety and health of persons working alone. These include such TB directives as:  2-3 (Electrical directive); 2-7 (Hazardous confined spaces directive);   2-10 (Materials handling directive); and 2-11 (Motor vehicle operations directive). The health and safety directives are now subject to cyclical review in the National Joint Council, and as each directive is consulted upon by the parties, particular consideration will be given to the incorporation, where required, of appropriate references to the safety and well-being of persons required to work alone.

[Emphasis added]

59 Finally, on October 2, 2006, the CRA issued the following “First Aid Health and Safety Policy” (Exhibit E-11), which responded to, among other things, the concerns of employees working alone or working “silent hours”:

Roles and Responsibilities

Manager:

Before assigning employees to a workplace, the manager shall:

a) ensure that for the workplace there is an ambulance service or other suitable means of transporting an injured or ill employee to a health unit or medical treatment facility; and

b) provide a means of quickly summoning the ambulance service or other suitable means of transportation to the work place.

N.B. This includes arranging for and paying the costs of transportation to a medical facility, if required.

c) ensure every first aid station is inspected regularly, at least monthly, and shall ensure that its contents are maintained in a clean, dry and serviceable condition.

d) ensure that an adequate number of qualified first aid attendants are available to render first aid to employees during working hours:

1. at least one attendant will be available at all times during each shift or working period at a location;
2. the selection, number, location and training of first aid attendants will be determined in consultation with the work place health and safety committee or representative.

e)  ensure that all first aid attendants are made aware of the contents of the Policy on the Indemnification of and Legal Assistance for Crown Servants.

60 Mr. Durling testified that at that time there were about 23 first aiders for the CRA group in Windsor.

61 Mr. Durling further testified that, if an employee worked outside the core hours of 7:30 a.m. to 5:00 p.m., then it required a first aider to be present.

62 In Mr. Durling’s words, operational requirements are activities and factors that allow the business to run efficiently and effectively.

63 In conclusion, Mr. Durling indicated that the employer is responsible and accountable for the safety and health of all employees and that there are about 360 employees at the Windsor TSO. He also pointed out that he was a member of the UMI Committee at the Windsor TSO and that he was actively involved in its operations.

64 In cross-examination, Mr. Durling testified that as stated in paragraph 2 of Exhibit U-6, the following factors are all under the umbrella of operational requirements:

1.  The Canada Labour Code (i.e. presence of first aid attendants)
2.   Presence of on-site supervision
3.  Security of staff and assets of the Agency
4. Operational requirements - Delivery of programs to Canadian public

65 The second witness for the employer was Trudy Kraker. She has been the manager of audit in Hamilton for the past seven years.

66 She began her career with the CRA in 1982. She has worked both in enforcement and audit at numerous Ontario locations and in several roles and divisions.

67 Ms. Kraker testified that, at all times relevant to this case, Brookfield was the landlord of the Bay Street building in Hamilton where the CRA was a tenant and that a “swipe” was required to enter the elevators on every floor but the ninth.

68 Ms. Kraker was the manager of Mr. Jenk’s office team. For the period relevant to these grievances, the core hours of work for all employees in the Hamilton TSO were 7:30 a.m. to 5:00 p.m. and the hours for service for the general public were from 8:15 a.m. to 5 p.m. “Silent hours” accommodated irregular situations outside those hours.

69 Ms. Kraker stated in her testimony, that “… a safe and healthy working environment …” means that the employer must ensure the presence of building security. It also means that, for the security of the offices, including the interview offices, there must be a building emergency official, that each floor should have sufficient first aid attendants and that a constant supervisory presence is required.

70 In cross-examination, Ms. Kraker testified that the cost factors associated with those factors, including commissionaires, adequate and compliant health needs for all employees and security needs issues required adding a team leader who was designated in the Hamilton TSO to control and schedule those cost impacts as part of the audit team.

III. Summary of the arguments

A. For the bargaining agent

71 The representative for the bargaining agent, Douglas Hill, argued that the decision in this case will turn on the interpretation of operational requirements, which should be interpreted restrictively.

72 Mr. Hill reiterated that the language of clause 25.08 of the collective agreement was mandatory, that employees have the right to flexible hours beginning at 7:00 a.m., and that the employees’ requests shall not be unreasonably denied.

73 Mr. Hill emphasized that the employer must exercise reasonable judgment linked to operational requirements.

74 The bargaining agent representative indicated that the witnesses Ms. Howick and Ms. Pinkney in Windsor had both established a past practice of a 7:00 a.m. start time in the 2003-2006 period that was uncontradicted.

75 Furthermore, Mr. Hill argued that the employer did not adduce evidence based on operational requirements.

76 The bargaining agent representative concluded that both Exhibit U-6 (see para 13 of this decision) and the third-level reply, applicable to the Windsor TSO, provide lists of the employer’s reasons for establishing the scheduled hours of work beginning at 7:30 a.m. The bargaining agent’s position is that operational requirements cannot consider factors including 1) the Code (i.e., the presence of first aid attendants); 2) the presence of on-site supervision; or 3) the security of the CRA’s staff and assets.

77 Furthermore, the representative for the bargaining agent stated that the Hours of Work Policy, which is applicable to the Hamilton TSO, excludes from operational requirements the considerations and conditions of supervision and the safety and health and security of employees on the different floors of the building. The document defines operational requirements as follows:

…

… The term “operational requirements” is defined as – the work that needs to be done based on the available resources within the required time frames. It is based on factors such as – the number of employees, the nature of the work, the degree of workload planning and scheduling involved, the type of clients and their hours of availability.

…

[Emphasis added]

78 In conclusion, the bargaining agent’s representative stated that the only operational requirements that should be considered in this case are those that are spelled out above.

79 In support of its position, the bargaining agent’s representative submitted the following three cases:

1) Cloutier v. Treasury Board (Department of Citizenship and Immigration), 2007 PSLRB 46;

2) Beaulieu v. Treasury Board (Employment and Immigration Canada), PSSRB File Nos. 166-02-16083 to 16085 (19870804); and

3) Canada (Attorney General) v. Degaris, [1994] 1 F.C. 374.

80 The representative for the bargaining agent respectfully submitted that the reasons in the employer's submission for supervision, security, and health and safety and the provisions of the Code do not fall under operational requirements, that all eight grievances should be allowed, and that the remedy requested for a 7:00 a.m. start time should not be unreasonably denied.

B. For the employer

81 The response of counsel for the employer, Debra Prupas, to the bargaining agent’s position that the employer has not adduced proof of operational requirements is that it is based on the false premise that operational requirements refer solely to one factor – delivering programs and services to the Canadian public.

82 Counsel for the employer labelled the bargaining agent’s approach as narrow and very restrictive and as an unacceptable definition of operational requirements.

83 According to counsel for the employer, there is no doubt that “… delivery of the programs to the public …” is one of the many factors included in and forming part of what constitutes operational requirements. Many factors come into play and have a direct link in the delivery of a quality and timely product or service to the Canadian public, as established in both the documentary and testimonial evidence.

84 Counsel for the employer emphasized that, when the fact situations in the workplace of this case were examined, the uncontradicted evidence was that different TSOs have different hours of work, according to Ms. Pinkney’s testimony in cross-examination.

85 From the employer's witnesses, Mr. Durling and Ms. Kraker, core hours of work meant that the office was open in both the Windsor and Hamilton TSOs from 7:30 a.m. to 5:00 p.m. and that those core hours have been in place for several years.

86 Those uncontradicted core hours (7:30 a.m. to 5:00 p.m.) for employees are different from the hours of access for the general public, which in both the Windsor and Hamilton TSOs have a start time of 8:15 a.m. Again, those hours of access for the general public have been in place for many years, contrary to the testimonies of the bargaining agent’s witnesses.

87 The employer's evidence introduced through Exhibit E-12 (hours-of-work survey of Ontario TSOs), confirms the evidence of both hours of work for employees (core hours) and hours of access for the general public in both the Windsor and Hamilton TSOs.

88 Exhibit E-12 also established uncontradicted evidence that some TSOs have different operating hours due to operational requirement needs. That is explained on page 5 of Exhibit E-12 for the Barrie TSO and on page 6 of the same exhibit for the Ontario Call Centre.

89 Ms. Kraker testified that the time between 7:00 a.m. and 7:30 a.m. would be considered as “silent hours.” The representative for the bargaining agent stated that, if Mr. Jenks was to work from 7:00 a.m. to 7:30 a.m., those 30 minutes would be “silent hours.”

90 The “silent hours” policy is not applicable to an employee’s regularly scheduled office hours, and that evidence is uncontradicted. Both of the employer’s witnesses stated that the “silent hours” policy was an anomaly.

91 Exhibit U-7 is a joint management-union policy about employees working alone during “silent hours.” It was signed by the management and bargaining agent co-chairs of the National Health and Safety Policy Committee on November 21, 2005.

92 In 2006, the CRA issued an advisory notice to all departments and agencies about employees working alone (Exhibit E-1).

93 The advisory notice was an expression of concern about the safety and well-being of employees who are required to work alone in situations where, in the event of serious injury or other emergencies, the required assistance may not be readily available.

94 The CRA's concern for safety and health and the well-being of employees to work alone led to the “First-Aid Health and Safety Policy.”

95 The employer’s policy for employees working alone states that they must be authorized to work during those periods, which is not always the case, according to Ms. Howick’s testimony who stated that she would go to work alone on weekends without authorization and without having been required by the employer to do so. When she worked alone in her office on weekends, she was not performing regular work assignments and did not comply with the National Health and Safety Policy Committee directive as detailed in Exhibit U-7.

96 The employer's counsel examined the jurisprudence presented by the bargaining agent’s representative and made the following observations.

97 In Cloutier, the facts were completely different and in no way comparable to the facts in this case. Ms. Prupas submitted Gauthier v. Treasury Board (Revenue Canada-Taxation), PSSRB File Nos. 166-02-14061 and 14062 (19841010). Gauthier is directly on point with this case and, on the question of supervision, states the following, at pages 6 and 7:

…

Article 18.03 (c) of the relevant collective agreement reads as follows:

Subject to operational requirements as determined from time to time by the Employer, an employee shall have the right to select and request flexible hours between 7 a.m. and 6 p.m. and such request shall not be unreasonably denied.

After examining all the evidence, hearing the arguments of the representatives of both parties, studying the contents of the exhibits filed, reading the jurisprudence cited, and deliberating, I conclude, for the reasons given below, that when the employer denied the employees’ requests to work from 7:00 a.m. to 7:30 a.m. because there was no supervisor available on the floor at that hour, it had a valid reason for doing so.

The director of Taxation for the Quebec Region district, H. Doyon, decided that a minimum of one supervisor per floor was required at all times during working hours in Revenue Canada, Taxation’s offices in Quebec City. In making this decision, which was in keeping with the various policies … the director was, in my opinion, exercising the discretion given him under clause 18.03(c). Clearly the supervision of employees during their working hours and in their place of work is one of the requirements of the service the Department offers the public.

…

[Emphasis added]

98 Counsel for the employer argued, based on Gauthier and the employer’s Hours of Work Policy (specifically, management presence), that supervision in the workplace is part of operational requirements.

99 Finally, before moving to the next issue, counsel for the employer emphasized that a thorough review of Gauthier was important in this case not only for the supervisory aspect of operational requirements but also for the other facts and factors in Gauthier that correspond to the facts in this case about flexible hours, compressed workweeks (approximately same number of employees in both cases), the health and safety and security of employees, and the security of assets and property during the working hours of all employees. Finally, in both Gauthier and this case, the parties’ jurisprudence refers to Richer v. Treasury Board (Revenue Canada – Taxation), PSSRB File Nos. 166-02-10880 to 10883 (19830808), which deals specifically with the issue of operational requirements under flexible hours.

100 The second decision presented in argument by the bargaining agent was Beaulieu,in which the arbitrator decided in favour of the grievor because the employer failed to produce proof of operational requirements.

101 In this case, counsel for the employer states that Beaulieu does not apply since the employer in this case has adduced evidence of operational requirements. Counsel for the employer asserts that even a narrow interpretation of operational requirements would include adequate supervision at the workplace during normal working hours.

102 The third citation of the representative for the bargaining agent was Degaris, in which the Federal Court ruled that an employer cannot rely on “operational requirements” as an excuse to deny leave “where it has failed to provide staffing personnel sufficient to meet its contractual obligations, particularly over a long period of time, and that to do so constitutes a violation of the collective agreement.”

103 Counsel for the employer rejected that decision as not applicable and not on point because the factual circumstances are entirely different and there is absolutely no evidence of any staffing problem in this case.

104 Counsel for the employer argued that I should adopt a broader view of operational requirements.

105 In terms of responsibility and liability, the employer is responsible for health and safety in the workplace. Both employer witnesses testified to the necessity of security for employees and for the assets of business at their respective TSOs. Both witnesses also expressed concern for and interest in the safety and health of their employees. Their expressions of concerns were of mutual interest to both parties, as vividly demonstrated in Exhibit U-7, which was jointly signed by the management and bargaining agent co-chairs of the National Health and Safety Policy Committee.

106 The issue of security extends beyond the employees of the TSOs to the general public and to the premises when the TSO is not the building’s only occupant. In Hamilton, the TSO Bay Street building is rented, and its occupants are not just TSO employees.

107 The costs associated with security, including the need for emergency evacuations, first aid attendants, a building emergency offer and a supervisory presence, were part of Ms. Kraker’s testimony. Those costs are another factor to be considered as part of operational requirements.

108 Clearly, according to the employer’s counsel, operational requirements under the flexible hours provision of clause 25.08 of the collective agreement and the evidence adduced suggest that the factors influencing those operational requirements can vary from one TSO to another. The evidence is that the factors do vary. For instance is the building rented by CRA? If so, are there employees other than CRA employees in that rented building who provide and who are responsible for the security of the building? Clearly, according to the employer’s counsel, operational requirements include budget considerations of how services are allocated at any given TSO.

109 Counsel for the employer argued that management’s rights and responsibilities allow it to address any issue, and it is not precluded from making and changing determinations of how to carry out its operations. Addressing all issues is part of the employer’s responsibilities.

110 Operational requirements are all the activities and factors that allow the business to run efficiently and effectively. Those factors and operational requirements are not fixed in stone or in time, and when they change, the employer must make changes. The employer has the obligation and the right to make changes to remain effective and efficient.

111 Finally in concluding its argument, counsel for the employer stated that, were I to accept the bargaining agent’s position on operational requirements, I would have to exclude the facts and factors that the employer identified in evidence.

IV. Reasons

112 One of the fundamental questions to be determined in this case is the meaning and extent of operational requirements (nécessités du service) in clause 25.08 of the collective agreement. The evidence is that the hours of work policies at both TSOs have been in place for years with little variation. The answer, be it a narrow interpretation of operational requirements as suggested by the bargaining agent or a broader interpreting as suggested by the employer, must be based on the whole of the evidence (both documentary and testimonial). That evidence must be examined in the best interests of harmonious and mutually beneficial labour relations between the parties as expressed in article 1 (Purpose and Scope) of the collective agreement.

113 I have adopted in the instant case a broad view of operational requirements for the following reasons.

114 The proof is abundantly clear. The central issue is captured in the employer’s Hours of Work Policy.

115 At both the Windsor and Hamilton TSOs, the core hours of work are from 7:30 a.m. to 5:00 p.m. For both TSOs, the office hours for the general public are from 8:15 a.m. to 5:00 p.m.

116 The “Hours of Work Policy” at both TSOs clearly establishes the employer’s legitimate concerns, such as the need for first aid attendants as required by the Code, the need for the security of staff and the CRA’s assets and the safety and health of all employees at both the Windsor and Hamilton TSOs. In addition, in the “Hours of Work Policy,” the employer also reaffirms that it is responsible for ensuring the appropriate supervision level at all times.

117 The employer is not only responsible but also accountable for the safety and health of all its employees. Paragraph 1 of page 1 of the employer’s advisory notice, dated February 20, 2006, reads as follows:

Concerns have been expressed regarding the safety and well-being of employees who are required to work alone in situations where, in the event of serious injury or other emergency, the required assistance may not be readily available for the affected employee.

This advisory notice is to advise departments and agencies of the need to be aware of the precautionary and protective measures which may be required in respect of the safety of the employees working alone, and to develop measures which are devised to provide assistance to such employees where and when required.

Local joint occupational safety and health committees should carefully review the various situations where employees are required to work alone, and make recommendations concerning the most reliable and practicable means of providing the required assistance to those employees, who may be subject to a significant risk or hazard.

118 Along the same issues of safety and health and security, the bargaining agent adduced Exhibit U-7, a November 2005 employee memorandum jointly signed by the management and bargaining agent co-chairs of the National Health and Safety Policy Committee on the subject of working alone during “silent hours.”

119 “Silent Hours” refer to employees working outside their regular office hours either during the normal workweek or on weekends.

120 Exhibit U-7 was created out of the concerns of the National Health and Safety Policy Committee of the possibility of a building emergency evacuation during “silent hours” where the building security officer was not aware of the number of employees on the premises. The National Health and Safety Policy Committee determined that local workplace committees should be involved in assessing situations where employees work alone during “silent hours” at individual work sites and in submitting proposals to local management about customized procedure based on local factors and conditions.

121 Finally, with respect to safety and health and security, the employer introduced its Exhibit E-11, “First Aid Health and Safety Policy,” dated October 2006, in accordance with Part II of the Code.That policy, among the employer’s many responsibilities, requires that the employer, before it assigns employees to a workplace, “… ensure that an adequate number of qualified first aid attendants are available to render first aid to employees during working hours: i) at least one attendant will be available at all times during each shift or working period at a location; ii) the selection, number, location and training of first aid-attendants will be determined in consultation with the workplace health and safety committee or representative.”

122 Another major factor to consider about the hours of work policies at both TSOs is that the employer is entitled to consider that supervising the workforce and the workplace forms part of operational requirements.

123 Obviously, the ultimate result of a TSO’s operational requirements is delivering a service to the Canadian public. Supervision or a management presence is one of many factors and is critical to the workplace activity not just only for supervision reasons but more importantly to allow workloads to be planned and scheduled to respond to employees’ questions, when required, and to ensure quality interactions between the other departments.

124 Flexible hours and compressed workweeks suggest that supervisors and subordinates may have different starting and finishing times. Keeping in mind that this case deals with several hundred employees at the Windsor and Hamilton TSOs, the supervisory staff must maintain control of all the activities to be performed to avoid jeopardizing the TSO’s efficiency. Clearly, supervision is one of the necessary requirements of the service that TSOs offer to the Canadian public.

125 Again, my observation, after a close analysis of the Hours of Work Policy, is that it must be read in its entirety. One cannot retain only the elements that are favourable to one’s case. Read in its entirety, I conclude that supervision is an essential part of operational requirements.

126 Another factor forming part of operational requirements is cost. Ms. Kraker’s uncontradicted testimony on that point was clear. Because of all the costs associated with the operations of a large enterprise, including such items as heat, lighting, security surveillance, safety and health costs, and other operating costs, the employer had to add an additional team that was to monitor and control the costs at the TSOs.

127 It is important to mention and emphasize that the director of the Windsor TSO, Michael Spencer, before finalizing and announcing the February 23, 2007 notice (Exhibit U-6), had all Ontario TSOs surveyed on the issue of hours of operation. The results were submitted in evidence as Exhibit E-12 and were not contradicted.

128 Those results show that, as a general rule, the majority of the Ontario TSOs have their employees’ core hours start at 7:30 a.m.

129 Some TSOs, because of operational necessities, vary slightly in their core hours, from the two TSO’s in this case.

130 However, the Ontario Call Centre hours of operations are significantly different because their operational requirements are significantly different from the other Ontario TSOs. The Call Centre’s hours of operation are from 7:00 a.m. to 11:00 p.m. because they have a national workload that covers all the time zones in Canada. Also, their agents are scheduled on an 8-week cycle as opposed to the TSOs in this case, which have 12-week cycles based on business requirements. It is important to note that the Ontario Call Centre does not provide flexible hours or compressed workweek schedules as do the two TSOs in this case. It should also be mentioned that the Ontario Call Centre supervisors are scheduled for the same hours of work.

131 Another compelling necessity in servicing the Canadian public is operating the TSO’s in compliance with the governing laws and statute’s. In this case, management must comply with the Code as it applies to its health and safety provisions, while also complying with the provision of article 22 of the collective agreement, which reads as follows:

**ARTICLE 22

HEALTH AND SAFETY

22.01 The parties recognize the Canada Labour Code (CLC), Part II, and all provisions and regulations flowing from the CLC as the authority governing occupational safety and health in the Canada Custom and Revenue Agency.

132 Surely, such a compelling statutory requirement upon the parties must be considered as a factor directly related to operational requirements.

133 The evidence establishes a past practice of a 7:00 a.m. starting time for two employees, witnesses Ms. Howick and Ms. Pinkney. The employer acknowledged that that practice continued for four years for Ms. Howick and approximately one year for Ms. Pinkney and that the practice ceased in February 2007. Since then, those two employees have been starting at 7:30 a.m.

134 The evidence shows that those two employees were the only employees in the Windsor TSO with a starting time before 7:30 a.m. Furthermore, there is no evidence before me of any employee at the Hamilton TSO having a daily start time before 7:30 a.m.

135 It should be noted that the two TSOs have a combined work force of several hundred employees.

136 However, the uncontradicted evidence is that the start time of employees on flexible hours of work at both TSOs has been 7:30 a.m. for many years.

137 Finally, there is no evidence before me of any promise to Ms. Howick or Ms. Pinkney that the past practice would continue.

138 Therefore, I will not accept any issue of estoppel.

139 It is management’s right to establish, schedule and modify its employees’ hours of work in compliance with the provisions of the collective agreement, while considering all the necessary factors required to operate an efficient and effective enterprise. That is evident in Exhibits U-6 and E-9 respectively as follows: “… a number of factors must be considered” and “… operational requirements … as established by the management team of the division will determine the start time and leave time (hours of work) of the employees working within that division” [emphasis added].

140 Delivering timely and quality services to the Canadian public must be done with the full consideration of all the factors mentioned earlier in this decision including management’s right to establish the adequate level of on-site supervisory staff to plan, schedule, supervise and respond to all the daily needs and activities, including emergencies, whenever they occur, involving both employees and members of the public and clients at the workplace.

141 Those management rights are accompanied by management’s obligation to comply fully with the applicable Code provisions as they apply to the safety and health and security of its workforce while at the workplace, as well as the security of the public that it serves daily.

142 Based on the preponderance of the evidence, one cannot reasonably conclude that operational requirements consist of only one factor – delivering services to the public. On the contrary, it is my ruling that the evidence supports a broader definition of operational requirements which include health and safety concerns.

143 Given that I find that operational requirements, broadly defined, justified the employer’s denial of the grievors’ requests, it follows that the request was not “unreasonably denied.”

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

V. Order

145 The eight grievances are denied.

February 18, 2010.                                                                    

Roger Beaulieu,
adjudicator