February 27, 2013
41.4.40
Background
The employee is grieving the Employer's refusal to retroactively adjust the transfer allowance to reflect the annual salary effective on the date of appointment at the new location, September 2, 2008, per section 3.4.2.2 of the NJC Relocation Directive.
Bargaining Agent Presentation
The Bargaining Agent representative indicated that on September 2, 2008 the grievor received a transfer allowance equivalent to 2 weeks salary based on the salary effective June 30, 2007. Upon the signing of a revised collective agreement on January 25, 2010 the grievor's salary on September 2, 2008 was retroactively adjusted. The representative therefore submitted that the grievor's transfer allowance should also be adjusted to reflect the rate of pay on the date in question, resulting in a supplementary payment of $287.31.
The representative noted that the NJC Relocation Directive does not contain any wording against retroactivity. Rather, the language of both the Directive and the collective agreement emphasize the concept of an effective date.
The representative added that subparagraph 46.03(b)(i) of the collective agreement defines the retroactive period as the period between the effective date of the revision (July 1, 2007) up to and including the day before the collective agreement was signed (January 24, 2010). As September 2, 2008 falls within these dates, the transfer allowance was paid during the retroactive period.
The representative submitted that it is important that transfer allowances be paid equitably to employees. She indicated that the failure to adjust for retroactivity leads to consistently lower transfer allowances for those employees who relocate during the retroactive periods of their collective agreements.
Departmental Presentation
The Departmental representative indicated that the grievor received the transfer allowance per the NJC Relocation Directive. The allowance was based on the grievor's annual salary effective on the date of appointment. The grievor was therefore treated fairly and in accordance with the Directive and collective agreement.
The representative noted that the concept of retroactivity applies to salaries. It was submitted that the collective agreement does not mention retroactivity for any other payment in the course of the retroactivity period. The representative added that salaries differ from allowances in that they represent compensation for services rendered. Consequently, the latter are not subject to retroactivity.
Executive Committee Decision
The Executive Committee noted that the Relocation Committee could not come to an agreement on the intent of the Relocation Directive in this case. The Executive Committee considered the Committee's report and could not reach consensus either. As such, the Committee reached an impasse.