General Secretary's Report

September 20, 2018

Dear Members:

It is with great pleasure that I present the 2017-18 Annual Report.  This report, my first as General Secretary, is an explanation of the NJC's work, its objectives and accomplishments during the past year, from April 1, 2017 to March 31, 2018.

The National Joint Council (NJC) is a unique organization that is co-managed by the Employer and the Bargaining Agents and its main ingredient to success is relationships. All matters falling under the auspices of the NJC are jointly considered and decided. Further to this, all committees and boards of management have equal representation from both parties. For 74 years, its model has been a successful example of collaboration and co-development on issues or matters that cut across departments and agencies and in every region of the country. It is an important entity, fostering information-sharing, consultation and collaboration between the federal public service as employer and the 17 federal bargaining agents representing approximately 210,000 employees in the public service of Canada. From its beginnings in 1944 until today, the parties have achieved, through a collaborative framework, agreement on numerous terms and conditions of employment, as well as health-related benefits. While such achievements are not always easily attained, the parties have focused on common interests with a mutual goal of improved working conditions for all. Some of the items discussed and reviewed include the largest health care plan in the country, a comprehensive Travel Directive used by all member employees of the NJC when on government business, as well as a suite of directives with a focus on Occupational Health and Safety.

With respect to the day-to-day functioning of the NJC, members of Council, from both sides, provide representatives for all committees and every matter is carefully considered together. The representatives who sit on these committees are chosen not only for their expertise and experience, but also for their dedication to the collaborative model of resolving grievances and consulting on many other issues. As a result of their efforts, among other things, numerous directives are regularly reviewed and updated and grievances are heard and decided. For such a distinctive organization to achieve successful collaborations, it requires hard work and continuous dedication on the part of all the members of Council, as well as resilience and commitment to the process. As a true testament to its history, even when difficult issues arise, as is the case from time to time, the NJC has always remained a critical and reliable forum where the parties continue to meet and discuss matters of mutual interest. The value of this cannot be understated - not only for the consistency and stability of the terms and conditions of employment it oversees and its recourse mechanisms, but for building trust, both personal and procedural, and maintaining relationships.

Of course, none of the above would be possible without the dedication and hard work of the NJC Secretariat, which supports the parties in all their endeavours.  Although small in numbers, the NJC team is mighty in terms of how it works together to ensure that operations run smoothly, that the numerous boards and committees receive excellent support and assistance and that members who seek guidance receive it to the fullest extent possible. Each team member is an excellent source of information on a number of topics, and they are also very adept at connecting parties to the right sources of information should their query fall outside the purview of the NJC. As such, I thank them on behalf of members for their dedication and hard work and for their contribution to the legacy of the NJC and on a personal note, I also want to thank them for assisting me as I transition to my new role as General Secretary.

The NJC Achievements section of this report offers a brief summary of the some of the significant achievements of the various components of the NJC over the past year.

Consultations

Although the success of consultations is dependent on various factors, including the topic of any given consultation, continuous, open and rich communication remains key. Striving for open and meaningful consultation is the unremitting goal. Meaningful consultations require transparent discussions and should involve early engagement whenever possible. Over this past year, several topics of consultation arose on a number of subject matters. The NJC facilitated discussions with regard to Public Service Commission’s (PSC) New Direction in Staffing as well as numerous consultations with the Treasury Board Secretariat regarding the new Directive on Diversity and Inclusion, the Directive on the Duty to Accommodate, the Occupational Health and Safety Environmental Scan and the Policy Towards a Public Service Free of Harassment and Sexual Violence. The NJC was also involved in consultations related to Bill C-65 which seeks to amend legislation to prevent and address workplace sexual harassment and violence in the workplace.

Communications and Outreach

Building on an initiative to provide training to those in the labour relations community interested in developing a better understanding the NJC and its grievance hearing procedure, the Secretariat continued to offer this training to all interested parties. These sessions were held in Ottawa in French and English. Although this past year’s sessions were only held in Ottawa, the training can also be held outside the National Capital Region, should there be sufficient demand. The objective would be to once again offer the training outside the National Capital Region during the next fiscal year. It remains that all the NJC training could not have been readied or delivered without the tireless efforts of the NJC team members. Their skills are unique to the public service in that they have regular exposure to NJC files and presentations from both sides of Council and they are able to provide assistance and information in a neutral capacity.

The following are examples of other NJC accomplishments during 2017-18:

Administrative and Facilities Support

After moving under the auspices of the Administrative Tribunals Support Services of Canada (ATSSC) after its creation in November 2014, the NJC Secretariat has continued to carefully maintain its operational independence while receiving services and support from this shared services model. The NJC and ATSSC have worked diligently together to find the right balance between the NJC independent mandate and supporting the administrative needs of the day-to-day work of the NJC. The support of the ATSSC in this regard continues to be appreciated.

As I begin my journey as General Secretary, I am humbled by all the work that has been accomplished over the years and I look forward to supporting and enhancing the work and profile of the NJC during my tenure. I am thankful for the trust bestowed on me by the parties as we collectively continue to showcase the National Joint Council as an innovative example in Canada of the demonstrated value, and outcomes, of meaningful union-management cooperation.

Sean Ross
General Secretary

Mandate

Created in 1944, the National Joint Council today includes seventeen (17) public service Bargaining Agents, the Treasury Board and four (4) “separate Employers” as members. The activities of Council directly affect the working lives of well over 210,000 represented employees in 71 departments and agencies in every region of Canada.

The NJC contributes to effective labour relations and human resources management on many fronts:

NJC processes:

Forum of Choice

Employers and Bargaining Agents have agreed that the National Joint Council is the "Forum of Choice" for co-development, consultation and information sharing between the government as Employer and public service Bargaining Agents. Through the National Joint Council, the parties take joint ownership of broad labour relations issues and develop collaborative solutions to workplace issues.

Governance

Under the NJC Constitution and By-laws, the activities of Council are formally governed at quarterly meetings of all participating Employer and Bargaining Agent members. Decisions of Council are made by consensus of the “Employer Side” and the “Bargaining Agent Side”. In the case of NJC Directives, participating members give full legal force to Council decisions by incorporating new directives as integral components of their respective collective agreements.

The Executive Committee is composed of three representatives from each of the Employer and Bargaining Agent Sides, respectively supported by a Side Secretary. The Executive Committee is empowered to act on behalf of Council in administering the activities of the NJC during the intervals between quarterly meetings. Executive Committee decisions are subject to formal ratification by Council when they are reported at Council’s regular quarterly meetings. Council may also delegate its decision-making authority to the Executive Committee to facilitate timely and effective action.

The General Secretary acts under the broad direction of the Executive Committee and is not a member of Council or any NJC committees. The Employer and Bargaining Agent sides alternately nominate the General Secretary who heads the NJC Secretariat for a five-year term. The NJC Secretariat, operating under the supervision of the General Secretary, offers administrative and professional support to Council and its constituent bodies.

The day-to-day work of the NJC is accomplished by the many hard-working and dedicated representatives of the parties who serve as appointed members of NJC working committees, working groups and boards of management. These constituent bodies report to Council through the Executive Committee and carry out a wide range of activities as determined from time to time by the Executive Committee.

National Joint Council Members

Employer Members

Canadian Food Inspection Agency
Communications Security Establishment Canada
National Research Council of Canada
Office of the Auditor General of Canada
Treasury Board of Canada Secretariat

Bargaining Agent Members

Association of Canadian Financial Officers
Association of Justice Counsel
Canadian Air Traffic Control Association, CATCA Unifor, Local 5454
Canadian Association of Professional Employees
Canadian Federal Pilots Association
Canadian Merchant Service Guild
Canadian Military Colleges Faculty Association
Federal Government Dockyard Chargehands Association
Federal Government Dockyard Trades and Labour Council (East)
Federal Government Dockyard Trades and Labour Council (West)
International Brotherhood of Electrical Workers, Local 2228
Professional Association of Foreign Service Officers
Professional Institute of the Public Service of Canada
Public Service Alliance of Canada
Research Council Employees' Association
Unifor, Local 2182
Unifor, Local 87-M
Union of Canadian Correctional Officers – CSN

Executive Committee Members
(April 1, 2017 to March 31, 2018)

Employer Side:

Chairperson:

Sandra Hassan, Treasury Board Secretariat of Canada

Vice-Chairperson:

Dan Danagher, Global Affairs Canada

Representative:

Robert Orr, Immigration, Refugees and Citizenship Canada (Until June 2017)

Secretary:

Toni Vincelli-Mosley, Treasury Board Secretariat of Canada (Until November 2017)
Stuart Wright, Treasury Board Secretariat of Canada (Since November 2017)

Bargaining Agent Side:

Co-Chairpersons:

Jean-Marc Noël, Canadian Military Colleges Faculty Association

Vice-Chairperson:

Robyn Benson, Public Service Alliance of Canada

Representative:

Debi Daviau, Professional Institute of the Public Service of Canada

Secretary:

Andrea Dean, Public Service Alliance of Canada

National Joint Council Secretariat:

General Secretary:

Deborah Cooper, National Joint Council Secretariat

Secretary:

Jennifer Purdy, National Joint Council Secretariat (Until September 2017)
Elizabeth Shum, National Joint Council Secretariat (Since September 2017)

Committee Chairpersons
(April 1, 2017 to March 31, 2018)

Foreign Service
Directives Committee: 

Sean Ross, Treasury Board Secretariat of Canada

Government Travel Committee:

Janelle Wright, Finance Canada

Isolated Posts and Government
Housing Committee:

Tracey Sametz, Transport Canada

Joint Employment
Equity Committee:

Nadine Huggins, Justice Canada
Larry Rousseau, Public Service Alliance of Canada (Until April 2017)
Carl Gannon, Public Service Alliance of Canada (Since November 2017)

Occupational Health and
Safety Committee:

Stéphane Cardinal, Immigration, Refugees and Citizenship Canada

Official Languages:

Michelle Laframboise, Canadian Forces Morale and Welfare Services

Relocation Committee:

Daniel Banville, Treasury Board Secretariat of Canada (Until July 2017)
Trevor Sanders, Canada Border Services Agency (Since August 2017)

Service-Wide Committee on
Occupational 
Health and Safety:

Don Graham, Treasury Board Secretariat
Bob Kingston, Public Service Alliance of Canada

Union-Management
Relations Committee:

Cathie Fraser, Research Council Employees' Association

Workforce Adjustment Committee:

Greg Gauthier, Finance Canada

Dental Care Plan Board
of Management 
(NJC Part):

Peter Cooney

Disability Insurance Plan
Board of Management:

Monique Paquin

NJC Achievements

Committees and Boards

The National Joint Council is very fortunate to benefit from the hard work, dedication and wealth of expertise of its Bargaining Agent and Employer Side representatives. Through their efforts, the mandate of the NJC is brought to life and advanced through the work of its constituent bodies. Each year, these very talented individuals apply themselves to complex and pressing labour relations matters and amass a substantial record of achievement. What follows is a summary of committee activities and accomplishments from the last year.

Foreign Service Directives (FSD) Committee

The Committee continued to hear grievances and provide recommendations to the Executive Committee. In addition to this, on April 1, 2017 the Committee approved a number of regularly adjusted annual rates which were published on the NJC website. The cyclical review of the suite of Directives is well underway and the Committee has been working diligently on co-developing revisions to the Directives. It is anticipated that the cyclical review process will be completed on schedule with a projected implementation date of April 2019.

Government Travel (GT) Committee

The Committee continued to hear grievances and provide recommendations to the Executive Committee. In addition to this, on April 1, 2017, the Committee approved a number of regularly adjusted annual rates which were published on the NJC website.

Isolated Posts and Government Housing (IPGH) Committee

In addition to the careful consideration of and providing recommendations to the Executive Committee on grievances, the Committee continued to approve periodic updates to the various allowances. The Committee received many presentations from Statistics Canada on the methodologies for calculating various rates and allowances and created a sub-committee to discuss the Environment Allowance (EA). The Committee also prepared a communiqué concerning the Vacation Travel Assistance (VTA) calculation, which will be published on the NJC website in September 2018.

Joint Employment Equity Committee (JEEC)

The Joint Employment Equity Committee (JEEC) was consulted on a number of Public Service Wide initiatives including: the Public Service Commission (PSC)’s New Direction in Staffing Interface, the revised Public Service Employee Survey (PSES) for 2018 and Treasury Board’s Policy Reset and their new Directives on Diversity and Inclusion and the Duty to Accommodate. The Committee was also approached by the Service Wide Committee on Occupational Health and Safety to assist in the development of an assessment tool to for departments/agencies to use in gauging psychological health and safety of the workplace. The committee provided extensive feedback, from an Employment Equity (EE) perspective, on all topics of consultation.

One of the key priorities for the Committee over the fiscal year was to review the mechanisms in place which track data related to non-citizen applications and non-citizen appointments to the Public Service. Given the racialized nature of the evolving workforce, the projected increases in immigration and the need for the Federal Public Service to effectively recruit new employees from a shrinking labour force, the Committee believes it would be advantageous to explore this growing pool of candidates. In that regard, the Committee was in contact with the PSC and requested that application and appointment data for non-Canadian citizens seeking work with the Federal Public Service be provided. The data revealed that an increasing number of non-citizens have been applying to the Public Service and as a result, tracking this data will be important for long term labour force planning and analysis. The Committee has asked that the PSC provide these reports regularly, along with other data delineated by equity group.

Occupational Health and Safety (OHS) Committee

The Occupational Health and Safety Committee continued to manage its grievances. The Committee considered its role with respect to the subject of legionella testing. In addition, the Committee continues to accept input calls for the cyclical review of the Occupational Health and Safety Directive, specifically, the Uniforms Directive and First Aid to the General Public.

Official Languages (OL) Committee

The Official Languages Committee was mandated by the Executive Committee with a project to report on state of bilingualism in the Public Service. Various stakeholders were consulted during each meeting and questionnaires concerning the training and evaluation of the official languages were distributed to the Community of practice and to bargaining agent members of Public Service Alliance of Canada (PSAC), Professional Institute of the Public Service of Canada (PIPSC) and Canadian Association of Professional Employees (CAPE). The Committee presented the report to the Executive Committee and will publish it on the NJC website. The Committee will share the results of the report with stakeholders and will consult with them to determine how to implement the recommendations.

Relocation (RELO) Committee

The Committee continued to manage its grievance caseload as it considered and reported on a number of grievances. The Committee began its cyclical review of the Directive and has been working diligently to co-develop revisions which will address systemic issues regularly seen by the Committee. 

Service-Wide Committee on Occupational Health and Safety (SWOHS)

The Committee continued to provide support and guidance to Departments/Agencies while also serving as a joint consultative body for various programs and initiatives in the Public Service.

They received presentations on emerging issues such as fentanyl, the legalization of marijuana as well as regular updates from various interest groups monitoring mental health in the workplace.

Expanding on their work from the previous year, Departments/Agencies continue to have difficulties with respect to identifying competent persons in accordance with the Canada Occupational Health and Safety Regulations. As such, a sub-committee was formed to address these needs, identify knowledge gaps and develop resources and training materials to assist organizations through the process of selecting a competent person. In that regard, the sub-committee is also developing a joint list of competent persons.

The Committee spent considerable time developing an assessment tool that could be used by Departments/Agencies to assess the psychological health and safety of the workplace. This tool will assist departments in identifying psychological hazards and is currently in the final stages of development.

Finally, with the introduction of Bill C-65, the Committee has been actively engaged with the Labour Program to provide input and advice on the proposed regulatory framework and will continue to monitor the legislation as it will have a significant impact on how occupational health and safety policies are developed in the future.

Union-Management Relations (UMR) Committee

The Committee coordinated the planning of the 2017 NJC Seminar held in the National Capital Region. The theme of the 2017 Seminar was "Communication". Some of the topics addressed included: Why (and How) Personality Matters at the NJC, Phoenix – Communications Breakdown, Communication Strategies for Union-Management Consultation and a Youth Panel on the Challenges of Working in the Federal Public Service. The Committee also began developing the 2018 NJC Seminar program.

In addition, the Committee ensured that the Joint Training program was delivered to new members and Chairpersons participating on NJC committees, as well as any interested Bargaining Agent representatives. A successful bilingual session was held in February 2018.

Work Force Adjustment (WFA) Committee

The Committee received updates from TBS as to the number of employees affected through WFA exercises, as well as updates from the PSC in regards to the number of priority employees in the Priority Information Management System. In addition, the Committee worked on cyclical review and the new Directive is scheduled to take effect October 1, 2018. Furthermore, Communiqués were prepared; Q&A and Highlights of changes will be published on the NJC website in September 2018.

Dental (DTL) Care Plan Board of Management (NJC Part)

The Dental Care Plan Board of Management (NJC Part) considered a number of appeals related to crowns, implants, orthodontia, dental exams, fillings, etc. The majority of the appeals considered by the Board in 2017-2018 addressed Plan limitations and late Claims. In addition to these, the Board of Management granted 5 requests for coverage of a dependant. The Dental Plan negotiations are ongoing and the Board of Management is working on proposals and recommendations.

Disability Insurance (DI) Plan Board of Management

The Board worked towards improving the disability claim process by providing suggestions and input to Sun Life regarding the revised Employer and Employee claim forms for disability insurance. The Board also contributed to changes to the content and delivery of the Plan Claimant Experience Survey in order to obtain information throughout a member’s entire claim process. In an effort to appreciate and gain a thorough understanding of the claims submission and decision making process, Board members attended a full day training session at Sun Life headquarters in Montreal. Members were provided with an overview of the different considerations at each level of appeal as well as a glimpse into the various ways litigation is handled under the Plan.

As in past years and in accordance with its mandate, the Board continued to examine and provide recommendations to Sun Life regarding appeals, and closely monitored the Plan’s financial position as well client satisfaction levels throughout the year. The Board addressed the backlog of appeals with additional meetings and is presently on schedule.

NJC Public Service Health Care Plan "at a glance"…

NJC Directives and Plans: over $2.5 billion in payments

*These numbers are from 2016, as the numbers for 2017 are not available yet.

Meetings

The NJC Secretariat has had a busy year providing professional, administrative and logistical support to meetings of Council, the Executive Committee, the various Committees and Boards of the NJC. The Secretariat organized 140 regular meetings and sub-committee meetings this past year and ensured follow-up on all meetings. The Secretariat also facilitated other special union-management consultations, as well as briefings on various issues and policies. In addition, the NJC Secretariat also provided several training sessions and prepared multiple networking activities for the members.

Committee Meetings 2017-2018

Committee

Number of meetings

Dental Care Plan Board of Management

 8

Disability Insurance Plan Board of Management

 9

Executive Committee

 4

Foreign Service Directives Committee

47

Government Travel Committee

 2

Isolated Posts and Government Housing Committee

 8

Joint Employment Equity Committee

 7

National Joint Council

 4

Occupational Health and Safety Committee

 2

Official Languages Committee

 6

Public Service Health Care Plan Partners Committee

 3

Relocation Committee

12

Service-Wide Occupational Health and Safety Committee

15

Union-Management Relations Committee

 7

Work Force Adjustment Committee

 6

 

NJC Grievances

The NJC grievance process is a successful example of alternative dispute resolution which has been in place now for many years. At the final level, the process has two distinctive and innovative features:

During the 2017-2018 year, 18 new grievances were received. In the course of the year, 32 grievance files were disposed of and 22 remain outstanding.

Grievance Totals 2017-2018

Carried over from 2016-2017

36

New 2017-2018

18

Total 2017-2018

54

Disposed 2017-2018

32

Carry forward into 2018-2019

22

*Please note that the carried forward number reflected in last year’s
Annual Report should have read 36 grievances.

Of the disposed caseload, 2 grievances fell within the purview of the Foreign Service Directives Committee, 10 to the Government Travel Committee (grievances concerning either the Travel Directive or the Commuting Assistance Directive); 12 to the Relocation Committee; 3 to the Occupational Health and Safety Committee; 1 to the Work Force Adjustment Committee, and 4 to the Isolated Posts and Government Housing Committee.

Breakdown of Disposed Grievances

Upheld

 1

Denied

 7

Upheld in part

 1

Impassed

 6

Lacked Jurisdiction

 1

Untimely

 3

Withdrawn

12

Other

 1

Total

32

Overview of some NJC Grievances

Travel Directive:

21.4.1105

The grievor worked at Department X, City A, Province Y. In August of 2009, the grievor suffered an injury on duty and went on leave for an extended period of time (approximately 7 years).

In or around 2013, the Department was attempting to secure suitable alternate employment for the grievor at a different work location. Based on Health Canada’s assessment, the grievor was fit to return to work with a geographical restriction to Region M. Following receipt of this information the grievor was considered for a position in City B; however, given that the grievor did not meet the linguistic profile, the Employer did not offer the grievor the position. At that time, the provincial workplace insurance board suggested an assignment, in order to facilitate the gradual return to work, and to cover financial expenses related to travel, subsistence and accommodations. The assignment suggestion was also raised by the grievor’s union representative during consultations and over the phone.

In December of 2015, the Employer was advised that the grievor’s geographical restrictions had changed and that the grievor was now medically better suited to remain in Region N for employment. Following receipt of this information, on February 22, 2016, the grievor was offered an indeterminate deployment to City C with Department X.

It should be noted that the grievor originally owned a condo in City A, but in 2014 (while still on leave) made the decision to move with the grievor’s spouse to City D. The letter of offer for the position in City C indicated that the grievor would not be entitled to reimbursement for relocation expenses or travel expenses for this deployment and should the grievor decline the offer, the Department would consider this a termination of employment.

As the grievor was now residing in City D, the grievor requested a later start date in order to find accommodations closer to the new place of duty. The Employer amended the start date and the grievor accepted the terms of the agreement on March 2, 2016.

The grievor rented a short term furnished apartment and reported to the new place of duty on April 4, 2016. The Employer and grievor agreed on a Graduated Return to Work (GRTW) schedule from April 4 to May 27, 2016.

Week 1 & 2: 3 days per week at 4 hours per day (Monday, Wednesday, Friday 8:00 – 12:00)
Week 3: 4 days per week at 4 hours per day (Monday, Tuesday, Thursday, Friday 8:00 – 12:00)
Week 4: 4 days per week at 6 hours per day (Monday, Tuesday, Wednesday, Thursday 8:00 – 2:30)
Week 5: 4 days per week at 6 hours per day (Tuesday, Wednesday, Thursday, Friday 8:00 – 2:30)
Week 6: 5 days per week at 7.5 hours per day (Monday, Tuesday, Wednesday, Thursday, Friday 8:00 - 4:00)
Week 7, 8, 9, 10, 11, 12: 4 days per week at 7.5 hours per day (Monday Tuesday Wednesday Thursday 8:00 – 4:00)

Upon arriving at the new workplace, the grievor became aware of another employee from City E, who was offered full relocation to City C and was given an assignment several months prior to a full relocation. The grievor requested entitlements under the NJC Travel Directive in order to adjust to returning to work after many years. According to the grievor, if the Employer authorized an assignment for a few months the grievor would have been on travel status and would be entitled to expenses for every third weekend home, rent, meal and incidental expenses.

In light of this information, the grievor had discussions with management which resulted in a grievance being submitted on April 13, 2016.

The employee is grieving that the Employer has denied entitlements under the Government Travel Directive.

The Bargaining Agent representative argued that the denial of an assignment/travel status contradicts the Travel Directive principles of trust, flexibility, respect and valuing people. A trial period of work assessment would have assisted in the transition back to the workplace and would have fostered a feeling of support from the Employer. Instead, the grievor received an ultimatum letter of offer that if declined would have resulted in termination. Given the number of years that had passed since the grievor had last worked, the grievor was unsure of success. The grievor was facing both a move and starting afresh with the Department and this was daunting. According to the Bargaining Agent, rebuilding trust at this stage would have been positive for the grievor.

Also, the fact that in accepting the position, the grievor would be separated from the grievor’s spouse remained a factor. The grievor’s spouse was a large part of the support network outlined by the provincial workplace insurance board and the ability to return home to the grievor’s spouse in City D remained imperative to the grievor. With travel status there would have been the benefit of the provision to travel home every three weeks. (s. 3.3.12)

In addition, upon arrival at the workplace, the grievor became aware that there were a number of employees who were there who were on travel status. The grievor did not feel valued.

The Bargaining Agent requests that the grievor be compensated for expenses as applicable in the Travel Directive.

The Employer representative indicated that the grievor was not authorized for travel status and the decision of authorization was within the Employer’s discretion and authority to make (s. 1.1.1). Both the provincial workplace insurance board and Health Canada were explicit – the grievor could not return to work at the prior workplace, the grievor’s substantive work location. Health Canada advised the grievor was medically suited to work in the Region N. Accordingly, the grievor was offered a deployment to City C.

Further, according to the Employer, an assignment would not have been in the best interest of the grievor. In the grievor’s case, had the assignment been unsuccessful or reached its end date the grievor would have been returned to the substantive position, an impossible option given the medical advice. As such, given the grievor’s permanent restrictions, the Employer feels the deployment was a reasonable course of action for the grievor to return to work.

It is the Employer’s opinion that regardless, whether the grievor may have been in City D when accepting the offer, the grievor’s presence there was a personal choice and not a result of any operational requirement, work location change, or request of the Employer. At no time was the grievor assigned to work in City D, therefore the Employer was not obligated to pay any type travel expenses from City D to City C. Again, the restrictions and limitations provided for the grievor’s return to work, from both the provincial workplace insurance board and Health Canada, stated that a position in Region N would best suit the grievor for medical support purposes. Thus, if the grievor was in fact present in City D temporarily, permanently or otherwise, the decision to be there did not reflect existent medical opinion and therefore further reinforces the grievor’s decision to be of a personal nature. The Employer submitted that the grievance should be denied.

The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded the employee had been treated within the intent of the Travel Directive. The Committee noted that since the grievor was reporting to the workplace and was not on assignment, the grievor was not in travel status. The grievance is therefore denied.

21.4.1109

The grievor has been an employee at Department X in City A since May 2000. As of 2010, a portion of the grievor’s duties requires crossing the border on a daily basis to a Department X owned facility in City B (3 km away). At all relevant times, it is understood that the grievor’s primary residence is in Canada. On or before June 2014, there were changes to US/Canadian legislation which resulted in changes in taxation requirements (FACTA June 27, 2014). In July 2014 and again in February 2015, issues were raised to management regarding the grievor as it pertains to the grievor’s income tax situation as a result of crossing the border to work at a facility in the US. Shortly thereafter, the grievor submitted three travel claims on July 7 ($9022.33), October 1 ($2708.14), and November 9, 2015 ($446.14) in the total amount of $12176.61. These invoices represented the filing of income tax in the US dating back to the tax year ending December 31, 2008. The Employer denied these claims, indicating that they were not a result of working in the US, but would have been incurred regardless of where the grievor worked given the grievor’s dual residence status (Canadian/US).

The Employee is grieving the ongoing failure of the Employer to pay the three expense claims ($9022.33, $933.82 and $3708.14) stating that these expenditures were all incurred as a result of repeated travel to the United States, which is a requirement of the job. The employee is of the opinion that this is in violation of article G5 of the applicable collective agreement, in part but not limited to the NJC Foreign Service Directives and the NJC Travel Directive.

The Bargaining Agent representative contended that the grievor was not treated within the intent of the Directive as it is their position that the grievor was entitled to reimbursement of expenses incurred for filing with the Internal Revenue Service (IRS). These expenses arise directly from the requirement put upon the grievor to travel into the US in the performance of the grievor’s duties. There is no dispute that the grievor is required to cross into the United States for work and that the grievor is on authorized government travel when carrying out duties in the US. By extension, the grievor is entitled to reimbursement of reasonable expenses necessarily incurred while travelling on government business, within the intention of the Directive that employees are not out of pocket. According to the Bargaining Agent, the expenses subject to this grievance are not typical of those that employees often claim as travel expenses, but they are no more atypical than the work situation that gave rise to them.

Under subsection 3.1.2 of the Directive, employees are provided a number of additional business expenses that can be reimbursed and it is the Bargaining Agent position that the expenses subject to the grievance can reasonably be reimbursed under this provision.

The employee shall also be reimbursed for service charges/fees for actual and reasonable expenses and for financial transactions, such as but not limited to:

The Bargaining Agent representative explained that if perhaps some could argue that the expenses in question are not reasonable, it is less reasonable to consider them the responsibility of the employee and result in the employee being “out of pocket” as a direct result of Employer required travel. These expenses were clearly not incurred by the grievor for any frivolous purpose, but rather because the work situation required this of the grievor. It was determined by the grievor’s advisor that an employee who works in the US on behalf of the Employer and who is not a US resident has state tax filing requirements. It is not based on citizenship, but rather on being a non-resident and earning income sourced at that location in the US. Therefore, all employees acting in the same capacity and at the same work location as the grievor and who often travel into the US on behalf of the Employer are required to file an annual US tax return.

Those who choose to comply with US law face immediate consequences in the form of costs associated with filing a return as well as payment of any tax found owing. Those who choose to ignore the US tax law might face no immediate financial consequence yet must live with the possibility of being detected and convicted of tax evasion and then suffer significant financial penalty.

It is the Bargaining Agent position that the real issue is the reimbursement of expenses incurred by the grievor as a direct result of the duties of the position. Therefore the Bargaining Agent requests that the grievance be allowed, and that the corrective actions requested to be granted.

It is the Employer’s contention that the grievor’s obligation to file income tax returns in the US derives from having dual Citizenship, not solely traveling into the US for the Employer. When hired by the Department in 1989, the grievor completed a “Notice of Appointment and Staff Questionnaire”. On that form, in the citizenship section, the grievor noted “Dual Canadian/American”. According to the Internal Revenue Service (IRS), for a US citizen or resident alien, the rules for filing income, estates, and gifts tax returns and paying estimated tax are generally the same whether you are in the US or abroad.

According to the US-Canada income tax treaty, remuneration other than a pension, paid by Canada to a citizen of Canada in respect of services rendered in the discharge of functions of a governmental nature shall be taxable only in Canada. It was suggested that by attaching form 8833 or 1040X, both US source and Canadian source government of Canada salary or wages can be excluded. It was noted that the first invoice submitted by the grievor was for the years 2008, 2009, 2010, 2011, 2012, and 2013. The forms were completed for at least two tax years before the grievor’s requirement to cross the border on an almost daily basis. Further the invoices do not include preparation of form 8833 or 1040X, which would be required to claim treaty exemption of wages paid to a Canadian citizen by the Canadian Government.

In January 2016, the Employer received an opinion from Ernst & Young LLP regarding the tax implications of employees performing cross border services. That opinion indicated that US Citizens who work for a foreign government are not exempt from US taxation. Therefore, it appears that the absence of a fee for preparation of those particular forms is likely because the grievor’s citizenship precluded taking advantage of the treaty tax relief.

It is the Employer’s conclusion that whether or not the grievor travelled for the Employer, the grievor would have been required to submit US tax returns due to having US citizenship. At any rate, the Employer maintains that tax preparation fees are not additional business expenses that would be reimbursed under subsection 3.1.2 of the Travel Directive. It is the Employer’s position that these expenses are not “reasonable expenses necessarily incurred while travelling on government business”. It is not the intent of the Directive to cover personal expenses for fees charged in the preparation of personal income tax.

It is the opinion of the Employer that it would seem beyond the intent of the Travel Directive to pay for expenses that could otherwise be compensated.

The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded the employee had been treated within the intent of the Travel Directive. The grievance is therefore denied.

21.4.1106

The grievor is working at Department X and was required to travel to City A and back between the period of January 16 to 21, 2012 pursuant to a Deportation Order. A preliminary itinerary was sent to the Department for review on December 21, 2011 and finalized on January 9, 2012. The grievor conducted his duties as per the itinerary; however, shortly thereafter the grievor filed a grievance alleging that his return travel was not in accordance with the NJC Government Travel Directive and that the Directive was circumvented to avoid business class entitlement for air travel.

The grievor’s return itinerary was as follows:

January 18-19, 2012

City A to City B (8h35m flight + travel time to and from terminal)

 

Rest period

January 20, 2012

City B to City C (7h30m flight + travel time to and from terminal)

 

Rest period

January 21, 2012

City C to City D

The grievor argues that instead of being able to continue his trip home to City D, the employer imposed a rest period in City C to divide his travel time and avoid business class entitlement for air travel. 

The employee is grieving that he was not treated within the intent of the NJC Travel Directive for his return travel January 18 to 21, 2012 while performing his duties resulting in international travel. The employee is also grieving that the Travel Directive has been circumvented to avoid business class entitlements for air travel. The corrective action requested by the grievor is that “prior consultation take place between the employer and the grievor… and where applicable, that business class be determined as per the NJC Directive”.

In the second level reply, the grievance was upheld in part to the extent that it was recommended that all future travel itineraries be discussed between the employee and the employer in order to satisfy both parties while adhering to the requirements of the NJC Travel Directive.

The Executive Committee considered the circumstances and arguments on mootness concerning this grievance. The Committee agreed that the grievance should be considered moot and hence, dismissed.

NJC Relocation Directive:

41.4.114

The grievor’s substantive position was located in City A. The grievor’s principal residence is in City B. In April 2015, the grievor was offered and accepted an assignment to a position within the same Department, located in City C. During the length of the assignment (April 2015-March 2016), the grievor worked under a hoteling arrangement whereby the grievor continued to work from a City A office.

On April 1st, 2016, the Department permanently deployed the grievor into the position in City C, with the caveat that the grievor would work remotely until moving to destination before the end of Summer 2017. The grievor has been teleworking and hoteling since the deployment and commutes to destination for specific events/meetings.

On April 7, 2016 the grievor requested approval for relocation expenses. This request was denied and the grievor filed a grievance.

On July 4, 2016, the parties agreed to refer the matter directly to the second level of the NJC grievance process and the grievance was partially upheld to the extent that up to $5,000 would be reimbursed for relocation expenses in accordance with an employee-requested relocation. The Department issued a written certification in October 2016 that had the vacant position not been filled as a result of an employee-requested transfer, it would have been filled through normal staffing procedures without relocation expenses being incurred. As such, an amended letter of offer was produced in order to reflect the decision. The Department further explained that a relocation can only be considered an Employer-requested one when the Department opens a national selection process, which acknowledges the need to fill a vacant position thus being an Employer-requested relocation. As the grievor’s relocation would not meet this criterion, the Employer refused to deem the grievor’s anticipated relocation as Employer-requested. Consequently, the grievor has put the relocation on hold until the matter is resolved.

The grievor alleged that the Employer has not authorized an Employer-requested relocation as part of the grievor’s deployment in accordance with the NJC Relocation Directive. The grievor indicated that instead the Employer is attempting to treat the relocation as an employee-requested relocation.

The Bargaining Agent representative noted that the relocation was required by the Employer as part of the grievor’s deployment offer. It was noted that the grievor did not formally request to be deployed, that the relocation was a condition of employment placed by the Department and hence, the employee felt compelled to relocate. The representative explained that the decision of the grievor to relocate was a personal sacrifice in order to pursue a career with the Department. However, the intent of the Directive is to ensure that employees, like the grievor, who accept to relocate for a given position, are not additionally burdened with shouldering the costs of a move.

In accordance with subsection 2.6.1, the Directive stipulates that Employer-requested relocations are to result from a staffing action, which is the grievor’s case when being deployed and hence should be entitled to the full benefits under the Directive.

In addition, the representative noted that there was no written certification that had the vacant position not been filed as a result of an employee-requested transfer, it would have been filled through normal staffing procedures without relocation expenses being incurred, which is contrary to paragraph 12.1.2(1) of the Directive. As such, the procedure was not properly applied by the Department as the relocation was not certified when the initial letter of offer was issued to the grievor. Instead, the Department issued the certification when the grievance was referred to the final level of the NJC grievance process. The representative explained that clearly, the intent of such certification is to determine the type of relocation offered at the time of the job offer. He maintained that these details are meant to allow the employee to make an informed decision before accepting the position, and hence this certification is not intended to be used by the Employer for the purpose of denying a grievance.

The Departmental representative explained that dating back to the first discussion between Management and the grievor, it was agreed by both parties that the grievor’s work location is City C, that the grievor is expected to move prior to the Summer of 2017, and that no relocation would be offered.

The representative noted that the grievor signed the letter of offer which did not include any entitlements to relocation benefits. In the event that the grievor disagreed with the Department’s decision to not offer relocation, the representative argued that the grievor should have not signed the letter of offer, which constitutes a valid and binding contract where both parties have an obligation to ensure that the contract is properly written and agreed on. Furthermore, it was explained that when the grievor signed the letter, the grievor knew that no relocation would be offered as the grievor sent an email to the grievor’s spouse and Management stating it would not be granted.

The Departmental representative noted that in accordance with the definition of an employee-requested relocation, the grievor made a formal request to be relocated and as the Employer sympathized with the hardship that this situation could cause to the grievor’s family, the grievor was granted reimbursement of a maximum of $5,000 relocation benefits under the Directive. In addition, the representative explained that at the time of the offer, there were two existing pools of qualified candidates that could have been used to staff the grievor’s position.

The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the grievor was not treated within the intent of the NJC Relocation Directive. The Executive Committee noted that there is a presumption that relocations are considered to be Employer-requested unless the Employer meets very specific criteria outlined in the Directive. As the Department did not follow the proper process to establish that the relocation should be employee-requested, the grievor should have been authorized an Employer-requested relocation. As such, the grievance is upheld.

41.4.117

The grievor works for Department A. Prior to the grievor’s relocation to City B, Province Y, the grievor lived and worked for the same Department in City A, Province X.

On May 16, 2016, the grievor was granted leave without pay (LWOP) for spousal relocation as the grievor’s spouse accepted an employment offer in the private sector in City C, Province Y. On June 9 2016, the grievor was offered a position at the headquarters office of Department A in City D. Upon receipt of the initial letter of offer, the grievor noticed that there was no entitlement under the NJC Relocation Directive. As such, the grievor inquired with Management, which subsequently issued an amended letter of offer, dated Aug. 25, 2016 that qualified the grievor for relocation expenses. The grievor commenced work in City D on July 11, 2016.

Although the amended letter of offer stipulates that the grievor is eligible to receive financial assistance under the Directive, the Department, Treasury Board and Brookfield had on-going discussions about whether or not the grievor ought to have been eligible under the Directive as the grievor was on LWOP at the time of the offer and hence, relocated under the priority of transfer of spouse. That issue was ultimately resolved in favour of the grievor.

The Employer determined that, as the grievor accepted a job offer in City D but relocated to City B, a city outside of the grievor’s place of duty, this did not align with the intent of the Directive and hence, the grievor is not entitled to the provisions of the Directive. The grievor argued against the Employer’s position and explained that the place of residence was selected to balance the working locations of the grievor and the grievor’s spouse in order to enable the accessibility of both locations of work for the household.

It is to be noted that the grievor was not reimbursed any relocation expenses and is commuting on a daily basis, at the grievor’s own expense, to and from City D.

The employee is grieving the refusal of the Employer to pay for relocation expenses as provided for in the Directive.

The Bargaining Agent representative referred to the definitions of ‘relocation’ and ‘place of duty’ and argued that those definitions must be interpreted more broadly. The representative explained that the definitions must be considered in light of the Directive’s principles and that it must be interpreted in a manner that provides for discretion and latitude, which is fair, reasonable and accounts for modern relocation practices. In the grievor’s case, the family’s relocation needs were to rent a house in City B, which is midway between the grievor’s spouse’s work in City C and the grievor’s in City D. As such, the principles of the Directive require that the definition of ‘place of duty’ be interpreted to incorporate the grievor’s family relocation needs.

The Bargaining Agent representative further indicated that any limitations to the Directive are published and as there are no limitations other than those prescribed under subsection 1.4.5 of the Directive, the grievor should be allowed to relocate to City B as the grievor complies with the 40 kilometres rule. In fact, the grievor’s new residence is much closer than 40 kilometres to the new work location than the previous residence in Province X. The representative indicated that there are no decisions from the NJC or the Federal Court which assert that an employee must relocate his home to the same neighbourhood or the same city as the place of duty in order to be eligible for relocation expenses. The Bargaining Agent representative also noted that in the alternative, there is discretion under subsection 1.2.5 of the Directive to reimbursed relocation expenses under exceptional circumstances. As the grievor meets the eligibility criteria for relocation as the grievor lives within commuting distance of work, regularly commutes to work, and that the home location meets the particular needs of the grievor’s family, relocation expenses should be covered by the Department.

The representative noted that the Directive is silent on what is considered a reasonable distance from the employee’s new principal residence to the new place of duty in order to be eligible for relocation. It is argued that the region the grievor and the grievor’s family chose to move to is outside of the grievor’s new place of duty (approximately 200 km), which is a considerable distance for a daily commute. It is the position of the Departmental representative that if the intent is to regularly commute from City B to City D, there are concerns from a health and safety perspective. It was indicated that the Department cannot, in good conscience, authorize relocation assistance that would place an employee in the position to commute for two hours following the end of a full work day.

Furthermore, the departmental representative acknowledged that the grievor made the decision to locate the principal residence to City B, following the decision to deny relocation assistance. Should the employee have known about any distance limitations, it would have factored into the family’s decision as to where they choose to select their principal residence. However, it is the contention of the representative that since the grievor knew that Management was seeking clarification of the grievor’s eligibility that the grievor ought to have known that the decision to move to City B without pre-authorization could pose a risk to the grievor’s eligibility, which is contrary to paragraph 2.2.2.2 of the Directive. The representative concluded that the grievor’s decision to continue with the move, with or without relocation assistance to City B, could be perceived that the grievor’s personal choice was to select City B as principal residence, regardless of whether the selection of this city was eligible for relocation assistance. In conclusion, the grievor made the personal decision to relocate to City B, which falls outside of what is considered to be a reasonable distance from the grievor’s new place of duty in City D. As such, the Departmental representative maintained that the grievor’s relocation was treated within the intent of the Directive.

The Executive Committee considered and agreed with the report of the Relocation Committee which concluded that the grievor was not treated within the intent of the NJC Relocation Directive. As such, the grievance is upheld.

Foreign Service Directives:

25.4.164

The grievor works at Department A and accepted a posting to City A, effective July 7, 2013.

From July 2013 to November 2014, the employee leased a Crown-held accommodation. During this time, the grievor reported a number of deficiencies to the Mission which the grievor deemed to have a significant impact on the SQs liveability. The grievor claimed that the principle of comparability with Ottawa-Gatineau was not applied to the grievor’s circumstances as no action from either the Mission, or the landlord was taken to address the deficiencies. As a result of the deficiencies, the grievor moved to a temporary accommodation from November 2014 until such time the grievor left the post.

During the period of time the grievor spent in temporary accommodation (Nov. 12, 2014 – Jan. 9, 2015), the grievor was compensated, as stated by the Department, for the following expenses: accommodation (hotel), dinner (upon presentation of receipts), bottled water, taxi fees and dog sitting expenses. It was noted that the grievor was not compensated for breakfasts as they were provided by the hotel, or lunches as lunches were a regularly purchased meal by the grievor while living in the grievor’s former permanent accommodation.

Following the submission of additional information during the first level grievance hearing, the Department submitted an Accommodation Deficiency Adjustment (ADA) request to the Committee on Accommodation Deficiencies (COAD), which resulted in the payment of 10% ADA from February 5, 2014 to October 21, 2014 and of 15% from October 22, 2014 to November 12, 2014.

The grievor continues to grieve the refusal of management to approve an ADA for the period from February 2014 to January 9, 2015; the meal allowances not reimbursed while in temporary accommodation and a Shelter Cost Waiver for the period of November 17, 2014 to January 9, 2015, in accordance with Appendix l of FSD 15.

The grievor initially grieved: refusal for an ADA between February 2014 and January 2015 and the denial of meal allowances while in temporary accommodation (Nov.4-5, 2014; Nov. 12-17, 2014; Nov. 28, 2014 to Jan. 9, 2015).

The Bargaining Agent representative indicated that from November 12-17, 2014, the grievor lived in an unsuitable temporary accommodation and could not cook meals during the stay. Management advised the grievor that the grievor was not entitled to any per diems and that the grievor would not be moved. The representative explained that this temporary accommodation did not meet the Employer’s policy for accommodation that is generally comparable to the average full-services rental accommodation normally occupied by a person of similar salary and family configuration in the Ottawa/Gatineau area. As such, the representative maintained that the grievor should have been provided with the daily meal allowance for City A without receipts as well as incidentals.

Furthermore, the Bargaining Agent representative explained that the grievor continued to pay Shelter Cost during the months of November, December, and January 2015, even though the grievor was not housed in an SQ. During this time, the grievor used a combination of temporary accommodation, hotels, friend’s home, in-laws’ home in another city, and periods of leave. The representative submitted that the grievor should have received a Shelter Cost Waiver pursuant to FSD 15, Appendix I for the entire period that the grievor was not occupying an SQ.

The representative further noted that from November 28, 2014 to January 9, 2015, the grievor did not live in a fully functional accommodation. There was not a full kitchen in any of the temporary accommodations in which the grievor lived and the denial of the meal allowances and incidentals contradicts the Employer’s policy as well as FSD 15. As such, it is the position of the Bargaining Agent representative that the grievor’s SQ and temporary accommodation did not meet the Employer’s policy and that the grievor is entitled to the benefits and allowances pursuant to FSD 15, Appendix I for the periods in temporary accommodation.

It is the Departmental representative’s position that the Travel Directive did not apply to the grievor’s time living in a temporary accommodation as the grievor was not on travel status and was not on relocation status for the periods being grieved. The grievor was in self-contained accommodations, meaning that the employee was able to store and prepare food. As such, the representative submitted that the grievor is not eligible to receive meals and incidentals.

The Departmental representative noted that it is Management’s prerogative to determine eligible expenses and that the Department acted within its rights to reimburse certain expenses such as hotel stay, dinners with receipts and other expenses (dog sitter, taxi, bottled water, etc.). These reimbursements are in alignment with the practices of the geographic area.

As for the Shelter Cost Waiver, the representative indicated that the grievor was not in a relocation situation as defined in the Relocation Directive when the grievor moved to a temporary accommodation and as such, the grievor’s request under FSD 15, Appendix I is moot. Furthermore, the representative added that the FSD’s appendices are to provide clarity and support to the FSDs for which they refer to and cannot be interpreted outside of its intent.

The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded that the grievor was partially treated within the intent of the Directive to the extent that an Accommodation Deficiency Adjustment (ADA) can be considered for the period of February 2014 to November 12, 2014, the period during which the employee occupied the Crown-held accommodation. As such, the request for an ADA will be referred back to the Committee on Accommodation Deficiency for further review. The Committee further agreed that the Meal Allowances requested by the grievor, as well as the Shelter Cost Waiver, are outside the scope of the FSDs. However, the Committee agreed that FSD 15.31, which includes a Shelter Cost Waiver, meals and incidentals, as described in FSD 15 Appendix J, be reviewed for the period of December 24, 2014 onwards when the employee was in temporary accommodation. As such, the grievance is upheld in part.

Finally, the Committee agreed that the way Missions handle temporary accommodation for employees due to operational reasons should be standardized from one Mission to another as currently the practices seem to vary from Mission to Mission. It is requested that the Department work with missions to ensure that there are standard practices in place.

25.4.166

The grievor works for Department A and accepted a posting to Country X from 2014 to 2017 (extended to 2018).

While at post, the grievor and the grievor’s same-sex spouse decided to become parents by using a surrogate mother located in City B, Country Y. The employee’s spouse is the biological parent and the decision to make arrangements away from post was based on the fact that adoption is illegal for same-sex spouses in Country X.

Prior to birth, the grievor had requested travel arrangements/accommodations for the birth/adoption of the child under FSD 41 – Health Care Travel and the Acting Head of Mission (A/HOM) had approved these arrangements and an advance of $17,000 on August 17, 2015.

Shortly thereafter (September to November 2015), a Departmental review determined that FSD 41 – Health Care Travel would not be applicable to the grievor’s case as neither the employee or the grievor’s spouse is under accouchement. The case was referred to Working Group B and they agreed that FSD 41 would not apply and recommended that the employee use the provisions of FSD 50 – Vacation Travel Assistance or FSD 56.11 – Post Specific Allowance to cover the expenses of travel for the employee and the grievor’s spouse to City B. The case was further reviewed by Working Group A, who also agreed with the above and added that the normal relocation provisions would apply for the new dependent under FSD 15 - Relocation; specifically, a non-accountable relocation travel allowance (NAA) and a 300kg net shipment. Working Group A also recommended that the Department exercise its managerial discretion under FSD 15.42 – Managerial Discretion by approving travel costs up to the return cost of lowest available airfare between the post and headquarters city (HQ) for a parent given that the child cannot travel alone.

Despite this, the grievor proceeded with the original plans using the $17,000 advance.

The child was born on December 30, 2015 and the grievor and the grievor’s spouse arrived in City B on December 31, 2015. Shortly thereafter, the grievor went on parental leave from January 4 to July 1, 2016. During this time, the grievor travelled and stayed at various places:

December 31, 2015 to February 8, 2016 – City B waiting for child’s passport;
February 9 to April 27, 2016 - Stayed in City C with family;
April 27 to May 14, 2016 - Stayed in City D to finalize arrangements with GAC and Embassy for Country X.

The grievor and family returned to post on May 17, 2016.

It should be noted that reimbursement of the $17,000 advance has been put on hold pending the resolution of this grievance.

The grievor is grieving the Employer’s refusal to authorize the allowances specified under FSD 41, specifically:

  1. Travel expenses for the grievor, to and from City B where accouchement occurred and where the baby received post-natal medical treatments;
  2. Payment of actual and reasonable living expenses from the time of delivery until such time that the grievor’s child was granted a visa to travel back to post;
  3. Travel expenses for the grievor’s spouse to and from City B to be present at the accouchement of their child; and
  4. Living expenses, for up to five days for the grievor’s spouse.

The Bargaining Agent representative indicated that although surrogacy may not have been considered when FSD 41 was written, it should be applied in a way that reflects the equal status of all families including non-traditional families. As it stands, FSD 41 inadvertently discriminates against certain members and it is the bargaining agent’s and employer’s duty to work collaboratively to remediate this unacceptable situation. The grievor and spouse should be accorded the same benefits that all other Foreign Service Employees would receive to facilitate their presence at the birth, as well as immediate post-birth care and while waiting for the necessary paperwork to return to post. Although the department recognized FSD 15.42 provides the means to resolve the situation, the proposed solution only partially resolved the matter.

It is the Departmental representative’s position that FSD 41 does not reflect nor address the grievor’s situation. Although the necessary medical care and parental nurturing of the newborn child was both the responsibility of the grievor and the grievor’s spouse, the Directive does not recognize situations when two same sex partners are responsible for the birth of a child. The medical travel request was to enable both parents to be present at the birth of their child via surrogacy; however, the circumstances of this request are not within the intent of FSD 41 as it is written today.

The Departmental representative encouraged the Committee to consider whether the intent of FSD 41.3 (Accouchement) is to allow both parents to be present at the birth of their child. While it is recognized that there is an underlying issue that surpasses the mandate of the NJC grievance process, the Departmental representative reminded the Committee to review this grievance with the utmost openness and consideration with regard to the original intent of FSD 41.3 Accouchement.

The Executive Committee considered and agreed with the report of the Foreign Service Directives Committee which concluded the employee had been treated within the intent of Foreign Service Directive (FSD) 41. The Committee concluded that, as neither the employee nor the spouse at post required medical care, FSD 41 does not apply. The Committee further noted the principle of comparability whereby insofar as is possible and practicable employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada. As such, the Committee agreed that the employee was treated equally to any other employee assigned in Canada or posted abroad who seeks the services of a surrogate. The grievance is therefore denied.

Isolated Posts and Government Housing Directive:

27.4.120

The grievor works at Department A in City A, an isolated post as listed in Appendix A of the Isolated Posts and Government Housing Directive (IPGHD). Upon the death of the grievor’s mother, the grievor was granted bereavement leave from June 1 to 7, 2015. On June 4, the grievor and spouse travelled by plane from City A to City B and then by car to City C for the funeral. On June 7, 2015, the employee and spouse made the return trip to City A. As outlined in Section 3.3 of the IPGHD, when employees are granted leave with pay for bereavement in the immediate family and they travel from their headquarters to another location and back, the employee is entitled to a limited reimbursement of travel expenses. As such, the employee submitted an expense claim under the IPGHD that included expenses for both the grievor and spouse. The total amount submitted in the original expense claim was $2,470.74, of which $1,284.07 are expenses incurred by the grievor’s spouse. The grievor was subsequently informed that the bereavement travel expenses for the grievor’s spouse would not be reimbursed. The Department argued that regardless of the guardianship status of the grievor’s mother, the mother does not meet the definition of “legal ward” under the Directive. It was argued that this term is used only for relationships where the employee and spouse are viewed as “parents”. The term “ward” is defined in the definition of “dependant” in the IPGHD: a child who is unmarried, for whom the employee does not claim a tax credit under the Income Tax Act, and is not yet 24 years of age in full time attendance at an educational institution.

The grievor is grieving management’s decision to deny travel expenses for the grievor’s spouse, stating that as the grievor had been awarded legal guardianship of the grievor’s mother, the grievor’s mother is the grievor’s ward, and as such, the grievor’s spouse’s travel expenses are payable in accordance with paragraph 3.3.3 a. of the IPGHD.

The grievor is grieving the denial of travel and transportation expenses in accordance with Section 3.3 of the Directive.

The Bargaining Agent representative contended that the grievor was not treated within the intent of the IPGHD Directive.

The IPGH Directive states in subsection 3.3.1 “When employees are granted leave with pay for a bereavement in the immediate family and they travel from their headquarters to another location and back, the employer shall reimburse the lesser of 1,2, or three”. In paragraph 3.3.3 a. of the IPGHD “The benefits provided by this section shall be extended to “The employee or the employee’s spouse or common-law partner, with respect to the death of other members of the employee’s immediate family”. Finally, under the IPGD definition of immediate family “for employee, means father, mother, mother in law, father in law”.

Also, in subsection 3.3.3, the term “legal ward” appears which is interpreted by the Bargaining Agent side as a relationship that can include a mother. The Bargaining Agent representative noted that the Directive does not contain any indication that there must be cohabitation with the “legal ward” to have access to the bereavement travel expense.

Based on the above, the Bargaining Agent representative indicated that the intent of the Directive is not to provide an extra gain to employees in isolated post, but to give the same opportunity for an employee and spouse to attend funeral as it would be normally accessible for an employee and spouse not located in an isolated post.

The Employer’s position is that the employee’s mother cannot be considered a legal ward since paragraph 3.3.3 (1) refers to relationships where the employee and spouse are viewed as parents to the legal ward since article 3.3.3 (1) refers to relationships where the employee and spouse are viewed as parents to the legal ward only. The IPGHD’s intent for article 3.3.3 (1) is in relation to a child as per all examples provided (child, step-child, adopted child). This is supported by TBS interpretation which states that article 3.3.3 (1) is referring to relationships where the employee and spouse are viewed as “parents” to the legal ward.

Furthermore, the IPGHD defines dependant where legal ward is intentionally limited a biological child, stepchild, adopted child, or legal ward who must also meet all of the eligibility criteria identified (1. Who is unmarried, 2. For whom the employee does not claim a tax credit under the Income Tax Act and 3. Who is not yet 24 years of age in full time attendance at an education institution). Also, the dependant needs to reside with the employee at the employee’s headquarters residence. Unfortunately, the mother does not meet these eligibility criteria. The employee’s mother does not meet the definition of dependant as defined in the IPGHD, since; she does not reside with the employee at the employee’s headquarters residence, is over 24 years of age and is not in full-time attendance at a recognized education institution.

Based on what was presented, the Department’s position is that, in accordance with the spirit of the Directive, “legal ward” would not include an elderly parent or other relative, regardless of the guardianship or custodial responsibilities bestowed on the employee by Letters of Guardianship or other court issued documents. The Employer is of the opinion that the grievor was treated within the intent of the IPGHD Directive, the Directive was applied as intended and respectfully asks that the grievance be denied.

The Executive Committee considered and agreed with the report of the Isolated Posts and Government Housing Committee which concluded that the Directive is referring to “legal ward” in the context of a child and does not include an elderly parent or other relative. Therefore, the grievor’s mother does not meet the definition of a “legal ward” under the Directive. Subsection 3.3.3 is clear that when the death is of an immediate family member other than a biological child, stepchild, adopted child or legal ward, travel expenses will be reimbursed for the employee or the employee’s spouse, but not both. For this reason, it was agreed that the grievor was treated within the intent of the Directive. As such, the grievance is denied.

Work Force Adjustment

The Work Force Adjustment Committee did not hold any hearings during the reporting period.

Occupational Health and Safety

20.4.250

The grievor works at Department X. The grievor is also a member of the local workplace health and safety committee. In early 2010, the grievor attended four Occupational Safety and Health (OSH) meetings which were all scheduled on the grievor’s days of rest. Shortly after attending these meetings, four grievances were filed alleging that the grievor was not financially compensated for the time spent attending the meetings or the mileage incurred as a result of travelling to the meetings. All grievances were joined at the National Joint Council and were dealt with simultaneously. The grievor is grieving the Employer’s decision to deny compensation for time spent attending the OSH meetings as well as the failure to reimburse travel expenses associated with the grievor’s attendance.

The Bargaining Agent representative noted that although the Employer has since compensated the grievor for attendance at the OSH meetings at the applicable overtime rate, it has failed to properly reimburse travel expenses associated with the grievor’s attendance, namely mileage. The representative indicated subsection 18.8.2 of the Occupational Health and Safety Directive (the Directive) stipulates that:

18.8.2 Employees who are part of the policy committee may not have the resources required to fully participate. Assistance or other support may be provided to facilitate their participation. This may include travel costs to attend meetings. If authorized by the employer, all travel costs must conform to the applicable provisions of the NJC Travel Directive.

Accordingly, the grievor is entitled to travel costs to attend the OSH meetings as per the provisions of the NJC Travel Directive.

The Bargaining Agent representative further submitted the Canada Labour Code (version in force between January 1, 2010 and December 13, 2012) (CLC) provides for the reimbursement of travel.

135.1 (10) The members of a committee are entitled to take the time required, during their regular working hours,

(a) to attend meetings or to perform any of their other functions; and

(b) for the purposes of preparation and travel, as authorized by both chairpersons of the committee.

The Bargaining Agent representative also noted paragraph 27.04 c) of the Correctional Services collective agreement (version expiring May 31, 2010) entitled the grievor to the applicable overtime rate for hours travelled on a day of rest; however, the grievor had only sought remuneration for the duration of the meetings themselves.

Consequently, the Bargaining Agent representative submitted the grievance ought to be allowed.

The Departmental representative explained that at the time of the grievance the grievor maintained two residences. The first, in City A, was located 10 km from the grievor’s workplace and was used when working. The second, in City B, was located approximately 290 km from the grievor’s place of work and was used during days of rest. As a result of this unique living situation, the management co-chairperson of the OSH Committee authorized the grievor to claim the applicable overtime rate for attendance at OSH meetings during the grievor’s first day of rest; however the grievor was advised no such authorization existed for subsequent days of rest. Furthermore, the grievor was advised mileage would not be reimbursed.

The Departmental representative submitted the grievor was aware there were a number of available solutions for meetings scheduled on the grievor’s second day of rest. These included not attending, switching shifts, participating by teleconference and/or requesting the meeting be rescheduled. The Departmental representative stated the grievor failed to exercise any of these options.

It was also argued there is no provision under the CLC for reimbursement of travel expenses nor is there such an entitlement under the subject collective agreement.

The Departmental representative further noted the Travel Directive was not applicable. The grievor was not in travel status as the meetings took place at the grievor’s workplace. Likewise, paragraph 1.5.2 (b) of the Travel Directive stipulates the traveller shall obtain authorization to travel in accordance with the Travel Directive. In the present matter, the grievor was expressly advised travel costs would not be subject to reimbursement. As such, the Departmental representative respectfully requested the grievance be denied.

The Executive Committee considered and agreed with the report of the Occupational Health and Safety Committee which concluded the employee had been treated within the intent of the Occupational Health and Safety Directive. The Committee noted that Section 18.15 does not provide for payment of travel expenses for workplace committee members. The grievance is therefore denied.

NJC Appeals

Dental and Disability Appeals

The Disability Board of Management is responsible for the overall administrative and financial management of the Disability Insurance Plan, including the review of the contract of insurance, review of any financial or service agreement, the financial status of the Plan, the services of the Insurer, the administrative fees and charges, the adequacy of reserves, the premium levels, the disposition of disputed claims, other matters referred to it by the NJC on the overall operation of the Plan, and for making appropriate recommendations to the NJC.

The Dental Care Plan Board of Management (NJC Part) is responsible for the overall administration of the Dental Care Plan, resolving members' complaints regarding eligibility or claims disputes with the Administrator, monitoring the claims settlement performance of the Administrator, and recommending changes to the Plan.

Both the Dental Care Plan Board of Management (NJC Part) and the Disability Plan Board of Management hear appeals on cases relating to the denial of benefits by the plan administrators.

During 2017-2018, 40 dental appeals and 28 disability appeals were decided by the two boards of management, compared to 44 and 28 in 2016-2017.

Appeals

The Disability Board of Management noted that mental illnesses, primarily depression and adjustment disorders, continue to remain the most frequent cause of new disability claims in 2017. This continues to be the experience across other Canadian disability plans as well.

The Dental Care Plan Board of Management (NJC Part) considered a number of appeals related to crowns, implants, orthodontia, dental exams, fillings, etc. The majority of the appeals considered by the Board in 2017-2018 addressed Plan limitations and late Claims. In addition to these, the Board of Management granted 5 requests for coverage of a dependant.

Breakdown of Dental and Disability Appeals

 

Dental

Disability

Upheld in part

 3

 0

Denied

25

24

Upheld

12

 4

Decided

40

28


Appendix

2017-2018 Yearly Planning Agenda

Priority

Objective

Expected Results

Next steps

Timeframe

FSD Cyclical Review To complete the FSD Cyclical Review within the 2018-2019 fiscal year. That the Committee will have completed all negotiations and supporting documents for publication within the 2018-2019 fiscal year to allow for the implementation of the revised FSD at the outset of the 2019-2020 fiscal year.
  • NJC Committee Advisors to continue to work with the FSD Committee to negotiate the proposals mandated to them by the Executive Committee
  • FSD Committee to complete negotiations and draft supporting documents for publication
  • Executive Committee to review cyclical review report
  • Translation of FSD and supporting documents

Q1 – FSD Committee to continue negotiations

Q2 – FSD Committee to complete negotiations

Q3 – Executive Committee to review cyclical review report and Council to approve

Q4 – FSD Committee to translate FSD and develop supporting documents

Q4 – Executive Committee to review supporting documents and translated FSD

WFA Cyclical Review To complete the WFA Cyclical Review within the 2018-2019 fiscal year. That the Committee will have completed all of their negotiations within the 2018-2019 fiscal year.
  • Executive Committee to review results of opting call
  • WFA Committee to receive interest-based negotiations and cyclical review procedural training
  • NJC Committee Advisor to continue work with the WFA Committee to negotiate the proposals mandated to them by the Executive Committee
  • WFA Committee to complete negotiations and draft supporting documents for publication
  • Executive Committee to review cyclical review report
  • Translation of new WFA Directive and supporting documents

Q1 – WFA Committee to complete negotiations

Q1 – Executive Committee to review cyclical review report

Q2 – WFA Committee to develop supporting documents and training materials

Q3 and Q4 – Executive Committee to review supporting materials, implementation

Q3 – WFA Committee to provide training sessions on new Directive

RELO Cyclical Review To complete the RELO Cyclical Review within the 2018-2019 fiscal year. That the Committee will have completed their negotiations within the 2018-2019 fiscal year.
  • NJC Committee Advisor to work with the RELO Committee to negotiate the proposals mandated to them by the Executive Committee
  • RELO Committee to complete negotiations and draft supporting documents for publication
  • Executive Committee to review cyclical review report
  • Translation of new RELO Directive and supporting documents

Q1 and Q2 – RELO Committee to continue and complete negotiations

Q3 – RELO Committee to develop supporting documents

Q3 – Executive Committee to review cyclical review report and Council to approve

Q4 – Executive Committee to review supporting documents
OHS Cyclical Review To accomplish a portion of the OHS cyclical review, including those of the Uniforms Directive and First Aid to the General Public – Allowance for Employees, within the 2018-2019 fiscal year. That the Committee will have completed at least 25% of the negotiations within the 2018-2019 fiscal year.
  • NJC Secretariat to receive input from both parties (September 1, 2018)
  • General Secretary to identify new items and send Opting Call Letter
  • NJC Secretariat to receive results of the Opting Call letter and report back to the Executive Committee
  • Executive Committee to review results of opting call
  • OHS Committee to receive interest-based negotiations and cyclical review procedural training
  • NJC Committee Advisor to work with the OHS Committee to negotiate the proposals mandated to them by the Executive Committee

End Q2 – NJC Secretariat to receive input

Q3 – General Secretary to issue Opting Call letter

Q3 – Parties to respond to Opting Call letter

Q3 – Executive Committee to review and decide on the results of the opting call

Q3 – OHS Committee to receive interest-based negotiations training

Q4 – OHS Committee to undertake negotiations

End Q4 – Committee Chairperson to provide detailed update of status of negotiations to Exec and/or Council

NJC By-Laws Finalize the review of the By-Laws. Ensure current practice and amended processes are reflected in the documentation. Publication of revised By-Laws and a determination with respect to proposed amendments to Section 15.
  • Review translated By-Laws, excluding Section 15
  • Executive Committee to complete its review of proposed changes to Section 15
  • Amend the By-Laws based on comments from the Executive Committee
  • Translate the document
  • Present the By-Laws to Council for approval

Q1 and Q2 – Executive Committee to complete review of proposed changes to Section 15 and translation of revised By-Laws

End of Q2 – Executive Committee to accept final version and present the document to Council for approval

Q3 – Translation and publication of Section 15 and/or publication of revised By-Laws

Development of a Strategic
Framework for the National Joint Council

Discuss the long term vision for the National Joint Council and its priorities, including the role of Council, and identify whether this is an opportune time to expand the membership and/or work of the NJC.

All members of Council will have a clear understanding of the value of the NJC in the current context of the Public Service.

Stakeholders will become re-engaged and more involved with Council.

New members of the NJC will have a clear understanding of the NJC upon joining.

  • Review draft strategic framework and incorporate suggested changes from Executive Committee
  • Present final version to Council for approval
  • Identify how to communicate the Strategic Vision to stakeholders

Q1- Executive Committee to review document and provide comments

Q2 -  Executive Committee to approve final version

Q3 – Council to approve final document

Q4 – Communicate Strategic Vision of the NJC to stakeholders

Information Sharing/ Consultations/ Co-Development Ensure that Council meetings are maximized by scheduling 2-3 pertinent consultations/information sharing presentations per meeting.

Council members will deem the meetings to hold value in both content and networking.

Committee Chairpersons will take a more active role in reporting on successes, challenges and critical issues on behalf of their Committee.

Attendance on the part of members, as well as Chairpersons, should increase if meaningful consultations become the focus of these quarterly meetings.

General Secretary will continue to meet with all Committee Chairpersons on a regular basis.

Ongoing communication with the Public Service Commission Outreach team in terms of bringing forward consultations to the Council.

Ongoing communication with the LR Council and HR Council to identify any consultations that may stem as a result of conversations at these venues which need to be brought forward to the NJC.

Q1 – General Secretary to meet with all Committee Chairpersons

Q1, Q2, Q3 and Q4 – Ongoing communication with the PSC Outreach team and LR/HR Council.

Communications/ Outreach – Speaking Engagements To increase the visibility of the National Joint Council as a forum for information sharing, consultation and co-development through speaking engagements and website renewal.

Speaking Engagements:

Continue to make presentations to LR Council and other interested organizations (Bargaining Agents, educational institutions, etc.) on the role of the NJC and its value.

Speaking Engagements:

Remain in touch with LR Council and continue to reiterate at Council meetings that presentations on the role and structure of the NJC can be provided to any interested stakeholders.

Speaking Engagements:

As requested throughout Q1, Q2, Q3 and Q4

Communications/ Outreach (cont’d) – Website Maintenance  

Website Maintenance:

  • Ensure website is maintained and supported over the course of the year

Website Maintenance:

General Secretary to provide regular updates on website maintenance and posting of key documents over the course of the fiscal year

Website Maintenance:

Q1, Q2, Q3 and Q4  - Regular updates to be provided by General Secretary

Training – Labour Relations Advisors

To provide NJC specific training to the following groups:

Labour Relations Advisors

  • Deliver ½ day courses focused on preparing labour relations advisors for final level hearings at the NJC
  • Courses will be provided based on demand, both in the National Capital as well as in the regions

Training for Labour Relations Advisors:

It is anticipated that this will result in less objections submitted before the Executive Committee, in addition to improving the quality of presentations given to working committees and hence, reducing the number of impasses

Training for Labour Relations Advisors:

  • Continue to assess the demand for training in the NCR as well as other regions
  • Assess the resources at the NJC Secretariat to provide on-demand training (i.e. budget, priorities, staff availability)
  • Revise training material on a regular basis based on comments from feedback surveys
  • Reach out to the Canada School of the Public Service to see if WebEx could be an option to reach a wider audience

Training for Labour Relations Advisors:

  • Review of training material – ongoing
  • Each quarter assess the resources and demand for training

Q1 – Reach out to CSPS to see if WebEx is a possibility

Q3, Q4 – anticipate 1-2 sessions to be scheduled

Training (cont’d) – Working Committee Members

Working Committee Members (Joint Training):

  • Continue to deliver a full day training session once a year to provide new Committee members with an understanding of the structure of the NJC as well as their role
  • A mid-year assessment will take place to determine if sufficient Committee turn-over has occurred to offer the training more frequently 

Training for Working Committee members:

  • It is anticipated that Committee members will feel more confident in their role, their authority, and will gain tools which will allow them to be more likely to reach consensus for both grievances and during the cyclical review process

Training for Working Committee members:

  • Review training material based on February 2018 feedback survey
  • Assess committee member turnover in September
  • Offer an additional training session in Q3 and/or Q4 if necessary

Training for Working Committee members:

Q1– Review February 2018 feedback survey

Q2 – Assess Committee member turn-over

Q3 and/or Q4 – Provide training based on demand

 

Cyclical Review Training for Working Committee members:

Deliver a ½ day training session to Committee members who will be entering into cyclical review in the 2018-2019 fiscal year to better prepare Committee members with respect to interest-based negotiations as well as procedural steps with respect to the cyclical review process.

Cyclical Review Training for Working Committee members:

  • It is anticipated that Committee members will feel more confident in their role and have a better understanding of both interest-based negotiations and the steps in the cyclical review process itself

Cyclical Review Training for Working Committee members:

  • Finalize contract with consultant who will deliver the interest-based negotiations training
  • Schedule dates for the training

Cyclical Review Training for Working Committee members:

Q1 – Finalize contract

Q3 – Provide training to those Committees entering into cyclical review in Q3 or Q4 (OHS Committee)

Training (cont’d) – Departmental Liaison Officers (DLOs)

Departmental Liaison Officers (DLOs):

  • Deliver a ½ day bilingual training session for Departmental Liaison Officers to provide them with an understanding of the structure of the NJC as well as their role

Training for DLOs:

  • A reduction in the number of questions from DLOs regarding the NJC grievance process and the role of the NJC

Training for DLOs:

  • Review survey from March 2017
  • Modify training based on feedback from pilot session
  • Assess resources of the NJC Secretariat to determine possible timing of training
  • Revise training material on a regular basis based on comments from feedback surveys

Training for DLOs:

Q1 – Review survey results and modify training based on feedback

Q2 and/or Q3– Assess NJC Secretariat resources for next training sessions

Q4 - Offer training module to DLOs