FPSLREB Decisions

Individual grievances referred to adjudication

1 Between May 2010 and February 2011, Craig Baird, John Floyd and Donald Webster (“the grievors”) grieved the Department of National Defence’s (“the employer”) application of the National Joint Council (NJC) Travel Directive (“the Travel Directive”) and of their collective agreement in relation to sea trials. For the employer, the Travel Directive does not apply when the grievors work on sea trials. For the grievors, the Travel Directive applies. The applicable collective agreement is the one concluded between the Treasury Board and the International Brotherhood of Electrical Workers Local 2228 (“the bargaining agent”), for the Electronics (EL) Group bargaining unit (expiry date: August 31, 2010) (“the collective agreement”).

2 The parties submitted a joint statement of facts. That statement was completed by explanations provided by both parties.

3 On April 23, 2010, Mr. Webster requested that his supervisor approve a travel authority form for the sea trial scheduled for April 29 and 30, 2010. That request was denied. Similar requests were also denied for Mr. Webster for sea trials scheduled to be held on July 5, 2010 and from February 1 to 3, 2011, for Mr. Baird for a sea trial scheduled for July 7, 2010, and for Mr. Floyd for a sea trial scheduled for January 25 to 27, 2011. Each denial was grieved. The employer denied the grievances on the basis that the grievors were not on travel status at the relevant times and that the provisions of article 32 of the collective agreement were to be applied. The grievances were then referred to the NJC Executive Committee, which was unable to come to an agreement on the grievances.

4 At issue is not the completion of the travel authority forms as such but rather the entitlement to the benefits provided under the Travel Directive. Since the employer already provides meals and housing while on sea trials, the grievors are claiming incidental expenses, as well as coverage under Parts II and V of the Travel Directive. Part II deals with insurance and benefits coverage in the event that an employee becomes ill, injured or dies while on travel status. Part V deals with expenses in case of emergencies, illnesses, injuries or death while on travel status.

5 At the time of their grievances, the grievors worked as surveillance and electronic warfare technologists at the Fleet Maintenance Facility Cape Scott (FMFCS) in Halifax. Their role was to provide technical advice, expertise and services in the calibration, development, installation and maintenance of electronic naval combat systems in ships, submarines, auxiliary vessels and shore establishments. Most of the time, they performed their duties at the dockyard while the ships were docked. However, they had to go on-board warships often to perform their duties. According to their work description, 20% of their work time was spent on ships or submarines. Some of that 20% was spent on sea trials.

6 Sea trials are necessary to test and verify the electronic naval combat systems at sea. Trials average from two to four days and take place at sea at variable distances away from the dockyard, beyond harbour limits. When employees are on sea trials for more than one day, for obvious reasons, they cannot go home at night.

7 The following clauses of the collective agreement must be examined to decide these grievances:

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ARTICLE 20

NATIONAL JOINT COUNCIL AGREEMENTS

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20.03 The following directives, policies or regulations, as amended from time to time by National Joint Council recommendation and which have been approved by the Treasury Board of Canada, form part of this Collective Agreement:

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(12) Travel Directive

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ARTICLE 27

TRAVEL

27.01 This article shall not apply to an employee for the travel involved in respect of a transfer or posting which is the subject to the Relocation Policy.

27.02 Employees in travel status will be reimbursed for all reasonable expenses in accordance with the current Travel Policy.

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ARTICLE 31

SEA DUTY

31.01 Except for employees of the Department of National Defence when covered by Article 32, Sea Trials’ Allowance, any employee assigned to work aboard a ship shall be paid a Sea Duty Allowance of nineteen dollars ($19) for each such night he or she is at sea.

31.02 Except for employees of the Department of National Defence when covered by Article 32, Sea Trials’ Allowance, any employee assigned to work aboard a ship shall be paid a Sea Duty Allowance, in addition to clause 31.01 above, of twenty-five dollars ($25) for each night beyond forty-four (44) consecutive nights that he or she is at sea.

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ARTICLE 32

SEA TRIALS’ ALLOWANCE

32.01

1. When an employee is required to be in a submarine during trials under the following conditions:
   1. he or she is in a submarine when it is in a closed down condition either alongside a jetty or within a harbour, on the surface or submerged; i.e., when the pressure hull is sealed and undergoing trials such as vacuum tests, high pressure tests, short trials, battery ventilation trials or other recognized former trials, or the submarine is rigged for diving;
      
      or
   2. he or she is in a submarine when it is beyond the harbour limits on the surface or submerged;
   or
   
   
2. when an employee is required to proceed to sea beyond the harbour limits aboard a HMC Ship, Auxiliary Vessel or Yardcraft for the purpose of conducting trials, repairing defects or dumping ammunition;
   
   or
3. when an employee is required to work in a shore-based work site in direct support of an ongoing sea trial;

he or she shall be compensated in accordance with clause 32.03.

32.02 Clause 23.13 (Encroachment) shall be applied at the termination of the sea trial only.

32.03

1. He or she shall be paid at the employee’s straight-time rate for all hours during his or her regularly scheduled hours of work and for all unworked hours aboard the vessel or at the shore-based work site.
2. He or she shall be paid overtime at time and one-half (1 1/2) the employee’s straight-time hourly rate for all hours worked in excess of the regularly scheduled hours of work up to twelve (12) hours.
3. After this period of work, the employee shall be paid twice (2X) his or her straight-time hourly rate for all hours worked in excess of twelve (12) hours.
4. After this period of work, the employee shall be paid three (3) times his or her straight-time hourly rate for all hours worked in excess of sixteen (16) hours.
5. Where an employee is entitled to triple (3) time in accordance with paragraph (d) above, the employee shall continue to be compensated for all hours worked at triple (3) time until he or she is given a period of rest of at least ten (10) consecutive hours.
6. Upon return from the sea trial, an employee who qualified under paragraph 32.03(d) shall not be required to report for work on his or her regularly scheduled shift until a period of ten (10) hours has elapsed from the end of the period of work that exceeded fifteen (15) hours.

32.04 In addition, an employee shall receive a submarine trials allowance equal to twenty-five per cent (25%) of his or her basic hourly rate for each completed one-half (1/2) hour he or she is required to be in a submarine during trials as per the conditions prescribed in paragraph 32.01(a).

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ARTICLE 36

ASSIGNED WORKPLACE

36.01 An employee shall have an assigned permanent headquarters and this shall be his or her workplace. This shall be the point where the employee reports, commences and ends his or her day’s work.

36.02 In the event that the employee’s permanent headquarters is changed the Employer will give not less than one (1) month’s notice in writing of the impending change.

ARTICLE 37

TEMPORARY ASSIGNMENT

37.01 When an employee is assigned to work at a location outside of his or her headquarters’ area he or she shall be considered as being on temporary assignment until he or she returns to his or her headquarters’ area or is permanently assigned to another headquarters’ area. An employee on temporary assignment shall be entitled to reimbursement for all reasonable expenses in accordance with clause 27.02.

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37.05 An employee who is assigned to a ship of the Employer to perform maintenance on the ship’s electronic equipment as his or her primary duty on a continuing basis at sea shall have that ship considered as his or her workplace for the period of that temporary assignment.

37.06 An employee who is assigned to a ship of the Employer for scientific and/or research support or to operate electronic equipment on board that ship, shall have that ship considered as his or her workplace for the period of that temporary assignment.

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ARTICLE 43

TRAINING

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Off-Location Training

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43.04 Expenses

1. Employees attending training courses will be reimbursed for expenses incurred for accommodation, meals and incidentals in accordance with the Treasury Board Travel Policy.

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8 Several clauses of the Travel Directive should also be examined to decide these grievances. I do not find it necessary to reproduce Part II and Part V, even though they were referred to by the parties. However, I find it necessary to reproduce the following provisions:

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General

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Purpose and scope

The purpose of this directive is to ensure fair treatment of employees required to travel on government business consistent with the principles above. The provisions contained in this directive are mandatory and provide for the reimbursement of reasonable expenses necessarily incurred while travelling on government business and to ensure employees are not out of pocket. These provisions do not constitute income or other compensation that would open the way for personal gain.

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Definitions

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Headquarters area (zone d'affectation) - for the purposes of this directive, spans an area of 16 kms from the assigned workplace using the most direct, safe and practical road.

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Incidental expense allowance (faux frais)

Canada and continental U.S.A. (Canada et États continentaux des États-Unis) – an allowance to cover the costs of items that can be attributed to a period in travel, but for which no other reimbursement or allowance is provided under this directive, and which helps offset some of the expenses incurred as a result of having to travel. It includes but is not limited to such items as gratuities, laundry, dry cleaning, phone calls home, grass cutting, snow removal, home security checks, plant watering, mail services, pet care, telecommunications hook-ups and service, and shipping of some personal effects. (revised January 15, 2009)

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Travel status (déplacement) - occurs when an employee or traveller is on authorized government travel.

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Workplace (lieu de travail)

Permanent/Regular (permanent/régulier) - the single permanent location determined by the employer at or from which an employee ordinarily performs the work of his or her position or reports to.

Temporary (temporaire) - the single location where an employee is temporarily assigned to perform the work of his or her position or reports to within the headquarters area.

Part I – Administration

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1.9 Workplace change (applies within the headquarters area only)

1.9.1 When an employee is assigned from a permanent workplace to a temporary workplace for a period of less than 30 consecutive calendar days, the provisions of this directive shall apply.

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Part III – Travel Modules

3.1 Module 1 - Travel within headquarters area

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3.1.7 Incidental expenses allowance

A traveller who is required to travel on government business overnight shall be paid an incidental expense allowance that covers a number of miscellaneous expenses not otherwise provided for in this directive for each day or part day in travel status as per Appendix C or D as applicable.

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3.2 Module 2 - Travel outside headquarters area - no overnight stay

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3.2.7 Incidental expense allowance

Not applicable to this module.

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3.3 Module 3 - Travel in Canada and continental U.S.A. - overnight stay

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3.3.7 Incidental expense allowance

A traveller shall be paid an incidental expense allowance that covers a number of miscellaneous expenses not otherwise provided for in this directive for each day or part day in travel status as per Appendix C.

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[Emphasis in the original]

II. Summary of the arguments

A. For the grievors

9 The grievors were entitled to be covered by the Travel Directive when on sea trials. The employer violated the collective agreement by refusing the benefits of the Travel Directive to the grievors and by assuming that they were entitled only to the benefits included in article 32 of the collective agreement, which does not deal with expenses but rather with wages and overtime. Furthermore, article 32 does not exclude the reimbursement of expenses to employees on sea trials.

10 The grievors’ permanent headquarters, as per clause 36.01 of the collective agreement, is the FMFCS in Halifax. That is where they normally start and end their workdays. When the grievors work on sea trials, they do not work in their headquarters area, and they should be considered on temporary assignment as per clause 37.01. According to that clause, they should be reimbursed all reasonable expenses in accordance with clause 27.02 and the Travel Directive. Furthermore, nothing in clause 37.01, clause 27.01 or article 32 specifies that the Travel Directive does not apply to employees on sea trials.

11 The Travel Directive also distinguishes between regular and temporary workplaces. A regular workplace is the location at which an employee ordinarily performs his or her work, while a temporary workplace is the location to which an employee is temporarily assigned. In this case, the permanent workplace is the FMFCS in Halifax, and the temporary workplace is onboard a warship at sea. According to clause 1.9.1 of the Travel Directive, the Travel Directive applies to employees who are assigned from a permanent workplace to a temporary workplace.

B. For the employer

12 The Travel Directive does not apply to the grievors when they are on sea trials because they are not travelling anywhere. They always work onboard ships, either docked or on sea trials. The ship is considered their workplace, and their tasks aboard ships are clearly their primary duties that they perform on a continuing basis. The compensation for sea trials work is provided in article 32 of the collective agreement and does not include travel expenses. If the bargaining agent and the Treasury Board wanted travel expenses to be reimbursed for sea trials, a reference to clause 27.02 or to the Travel Directive would have been made in article 32.

13 The Travel Directive and the collective agreement must be read as a whole to understand the true intention of the bargaining agent and the Treasury Board. The collective agreement refers to the Travel Directive when contemplating its application, as in clause 37.01 or 43.04.

14 The employer also argued in the alternative that, when onboard ships, the grievors are in their headquarters area as defined by the Travel Directive, since they are not 16 kilometres away from their assigned workplace. In addition, according to clause 37.05 of the collective agreement, the ship is considered the workplace of employees who perform maintenance work on its electronic equipment. All the modules (3.1, 3.2 and 3.3) of the Travel Directive are premised on employees being away from the workplace. Consequently, the grievors are not on travel status while on sea trials and are not entitled to reimbursements under the Travel Directive.

15 The employer also argued issue estoppel to prevent the grievors from claiming travel status or at a minimum from advancing that the principle of abuse of authority should apply since the question was ruled on by an arbitration board in an arbitral award dated July 25, 2012 for the EL group bargaining unit (PSLRB File No. 585-02-37). Paragraphs 67 and 68 of the award read as follows:

Article 32 - Sea Trials’ Allowance

(67) The Employer proposes changes to article 32 to clarify its intent. The Employer argues that once an employee has boarded a vessel/ship, the employee should no longer be deemed to be in travel status for the purpose of being entitled to reasonable expenses under the Travel Directive.

(68) The Arbitration Board determines that clause 32.02 of the old collective agreement shall be replaced in the new collective agreement by the following language:

32.02 When an employee is at sea pursuant to 32.01, the employee will be considered to be at his or her workplace and not on Travel Status.

The remainder of Article 32 shall be renewed without change except for re-numbering as is required by the inclusion of the new clause 32.02 above.

[Emphasis in the original]

On that last point, the employer referred me to Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63.

III. Reasons

16 The question before me is whether the grievors are on travel status when they are on sea trials. If so, they are entitled to be reimbursed expenses under the Travel Directive. Specifically, they would be entitled to be reimbursed incidental expenses and to be covered under parts II and V of the Travel Directive, which provide insurance, benefits and expenses in case of illness, injury or death.

17 According to clause 20.03 of the collective agreement, the Travel Directive is part of the collective agreement. According to clause 27.02, employees on travel status are reimbursed expenses in accordance with the Travel Directive. Thus, both documents must be read together.

18 The purpose of the Travel Directive is “… to ensure fair treatment of employees required to travel on government business…” It does not precisely define what “travel status” means. It states only that travel status “… occurs when an employee … is on authorized government travel.” Clause 1.9.1 states that the provisions of the Travel Directive shall apply to an employee assigned to a temporary workplace. The Travel Directive defines a temporary workplace as “… the single location where an employee is temporarily assigned to perform …” his or her work within the headquarters area, which is 16 kilometres or less from the assigned workplace. The Travel Directive defines the permanent or regular workplace as “… the single permanent location … at or from which an employee ordinarily performs the work of his or her position or reports to.” Part III of the Travel Directive details the expenses payable to an employee who is away from his or her workplace on government travel.

19  Based on the facts of the cases before me and the wording of the Travel Directive, it seems clear to me that the grievors’ regular workplace is the FMFCS at Halifax. Most of the time, the grievors work in the dockyard or onboard a ship docked there. That represents their permanent or regular workplace as per the Travel Directive. Once in a while, at a frequency not specified at the hearing, the grievors work on sea trials onboard a ship outside the dockyard, away from the FMFCS. That ship, at that location at sea, becomes their temporary workplace, geographically or physically away from their regular workplace. For trials of more than one day, they are away from their workplace to such extent that they cannot go home at night. Considering that they then work at a temporary workplace, the Travel Directive applies, according to its clause 1.9.1.

20 I do not agree with the employer’s argument that the grievors do not travel when they work on sea trials. They do travel, and they are away from their normal workplace. However, they travel onboard the ship on which they work, not with their cars or via public transportation. They travel onboard their temporary workplace, away from home and from their permanent workplace. Temporary assignments are covered by article 37 of the collective agreement and clause 37.01 clearly provides for the benefits of the Travel Directive. 

21  Nor do I agree with the employer’s argument that travel expenses should not be paid to employees on sea trials because article 32 of the collective agreement, which covers compensation while on sea trial, does not refer to travel expenses. Article 32 does not deal with expenses but with special compensation for time worked on sea trials. It also provides for a period of rest before returning to work after a sea trial. Finally, it provides for a wage premium when working on submarines. In summary, it provides a special compensation regime adapted to sea trials. Considering that the grievors are at a temporary workplace while on sea trials, and considering the content of the Travel Directive, article 32 does not need to specify that the Travel Directive applies. In fact, it is the opposite. For it to not apply, specific mention would be required.

22 The employer also raised issue estoppel to prevent the grievors from claiming expenses while on sea trials at adjudication since the question was allegedly decided by an arbitration board in July 2012. I do not agree. The arbitration board was asked to amend article 32, and it did. It amended the existing article to provide that, in the future, employees on sea trials will not be considered on travel status. The arbitration board made the change to resolve an impasse at the bargaining table but did not provide any reasons for its decision, as is customary for arbitral awards. I cannot conclude from it that the arbitration board made its award on the basis that it found the wording of article 32 prevented the reimbursement of travel expenses. Furthermore, the jurisdiction of an arbitration board is not to interpret the terms and conditions of employment but rather to decide which terms and conditions of employment will apply to employees in a bargaining unit when the bargaining agent and the employer are unable to agree on them.

23 The employer argued that the collective agreement refers to the Travel Directive when contemplating its application, as in clause 37.01 or 43.04. According to the employer, since no mention of the Travel Directive appears in article 32, it implies that employees are not on travel status when on sea trials. I do not agree with that argument. Clause 37.01 specifically provides that the employees on temporary assignment are entitled to the benefits of the Travel Directive and it directly applies to these grievances. It flows well with clause 27.02 and the provisions of the Travel Directive. Clause 43.04 provides travel expenses for off-work-location training. The grievors were not on training during the sea trials and clause 43.04 has no application to their grievances. At the end of the day, for the Travel Directive to not apply, specific mention would be required in clause 37.01.

24 Contrary to the employer’s argument, clauses 37.05 and 37.06 of the collective agreement do not prevent the application of the Travel Directive. The facts submitted by the parties show that the grievors were not assigned to a ship to perform maintenance work as their primary duty on a continuing basis at sea. Most of the time, the grievors do not work at sea. Nor are they assigned to a ship for research or to operate electronic equipment, contrary to the requirements in clause 37.06. Even if the parties would agree that clauses 37.05 or 37.06 apply to the grievors’ work on sea trials, the fact remain that those assignments are temporary assignments at a temporary workplace. In those cases, clause 37.01 of the collective agreement applies.

25 Nothing in the collective agreement states that the Travel Directive does not apply to work done on sea trials. I have already concluded that the grievors are on travel status when on sea trials. Consequently, the employer violated the collective agreement and the Travel Directive in deciding that the grievors were not on travel status when on sea trials. They were on travel status and were covered by the Travel Directive.

26 As stated earlier in this decision, the employer provided housing and meals to the grievors while at sea. The insurance and expense coverage under Parts II and V of the Travel Directive had no impact on the grievors since, fortunately, no incident giving rise to their application occurred when the grievors were on sea trials. In the circumstances of these grievances, the grievors are entitled only to the reimbursement of incidental expenses for the days they were on sea trials, to the extent provided for in the Travel Directive.

27 Finally, it could be argued that some of the incidental expenses referred to in clauses 3.1.7 and 3.3.7 of the Travel Directive do not occur while at sea such as gratuities, laundry, dry cleaning or phone calls. However, others, such as grass cutting, snow removal, home security checks, plant watering or pet care could occur.

28 I want to thank the parties for their efficiency in dealing with these five grievances. The hearing lasted less than three hours. That was made possible because the parties had constructive discussions before the hearing and had agreed on the facts. They clearly identified the question on which they needed a decision, and they focused their arguments on that sole question. As a result, everybody’s scarce resources were used well.

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

IV. Order

30 The grievances are allowed.

31 I order the parties to attempt resolving between themselves the specific amount of incidental expenses that should be reimbursed to the grievors.

32 I will remain seized of these grievances for 90 days should the parties be unable to agree. 

October 26, 2012.

Renaud Paquet,
adjudicator