November 6, 2024
21.4.1146
Background
The grievors performed relief work for Department A in various locations, on various dates between September 2021 and March 2023 for periods of time that varied between two (2) weeks and two (2) months. The grievors stayed in Government housing and subsequently submitted expense claims for Private Non-commercial Accommodation Allowance (PNAA) for the portion of their travel when there was a permanently assigned occupant, either present in or absent from the residence. Between February 2022 and March 2023, the grievors’ claims were denied. Between April 6, 2022, and April 24, 2023, a total of 30 individual grievances were filed by 27 employees.
Prior to the ratification of the their collective agreement, Department A employees were subject to the Financial Management Manual (FMM) for Department A, which had been interpreted previously by the committee C. Department A management had previously deemed Crown housing not to be government facilities or barracks as it lacks the institutional/non-residential component of government and institutional accommodation which removed from its scope anything akin to a private place of residence, even if government owned. As a result, past departmental practice was to deem accommodation in Crown housing while in travel status eligible for PNAA.
The Treasury Board and the Bargaining Agent subsequently signed a collective agreement in which the parties opted into the NJC Travel Directive (NJC TD), among other NJC directives. The grievors filed these grievances following the ratification of the collective agreement.
Grievance
The employees are grieving the denial of claims for PNAA during periods of relief work in isolated communities. They grieve that they are entitled to this allowance in accordance with the terms of the NJC Travel Directive, incorporated into the collective agreement governing terms and conditions of employment. The grievors note that Department A employees’ entitlement to this allowance has been confirmed by numerous previous occasions when Department A employees in similar circumstances received this allowance. In the alternative, the Employer is estopped from denying the employees this allowance because they relied upon those earlier decisions in making arrangements for their travel; had they known that these claims could be denied, they would have made other travel arrangements.
Bargaining Agent Presentation
The Bargaining Agent representative explained that 27 employees with Department A filed the 30 grievances that are being addressed through this grievance hearing. They clarified that the grievances arose after the Bargaining Agent ratified their first collective agreement. Prior to the ratification of the collective agreement, the Department had created their own travel directive, using similar language to the NJC TD. It is the Bargaining Agent’s position that the language defining Private Non-commercial Accommodation in the NJC TD is not inconsistent with the Department’s directive, which allowed for the payment of the PNAA. The representative argued that the Department acknowledged the private and residential nature of the accommodation as being different from a governmental or institutional accommodation because it did not include the institutional component when it allowed for the payment of the allowance in similar circumstances under the departmental directive.
The Bargaining Agent representative reviewed decisions from the external review committee which clarified the private nature of the Crown-owned accommodations when it is rented out on a permanent or long-term basis to another employee at the time when the grievor stayed at the accommodation. They noted that in all the decisions, the accommodation was characterized as private accommodations as opposed to governmental institutions due to the absence of the institutional component required to be considered government or institutional accommodation under the Directive. They highlighted that the fact that one recommended the decision that staying in a Crown property was not necessarily fatal to the case, as members stay in various types of Crown lodgings, including institutional facilities, vacant homes, and homes being rented to other members on an ongoing basis. They highlighted that only the homes being actively lived in by another member retained the private character to receive the PNAA.
The Bargaining Agent representative emphasized the private and residential characteristics of the properties, being rented out on a long-term or permanent basis to individual employees who pay rent in the form of an amount that is deducted from their pay in exchange for exclusive use and possession of the property, as stated in the occupancy agreements the employees sign when renting these units. They reviewed the principles of interpretation, and quoted Treasury Board’s testimony in Pilon v Canada (Treasury Board-Department of Transport) (2011 PSLRB 114) indicating that the intent behind the NJC Travel Directive was “to provide an allowance to employees on government travel who chose to stay with friends or relatives rather than in a commercial establishment… [However,] it was never intended [for] an employee who chose to stay in his or her own residence […].” The Committee asked about expenses the grievors incurred when staying at these locations. The Bargaining Agent representative clarified that the PNAA is perceived as an incentive to encourage cost savings and cited 2011 PSLRB 114 para 34 where the argument of personal gain was described as not convincing. The representative also indicated the affidavits sworn by two (2) of the grievors supported the private nature of the home.
They indicated that in one of the locations where a grievor stayed, there are only two (2) hotels that appear when searching on Google, and that their availability is seasonal and expensive. This was to indicate the cost-effectiveness of the grievors staying in another employee’s private accommodation while they vacate it. The Committee questioned whether the grievors have a choice or if they are ordered to stay in a specific residence. The Bargaining Agent representative indicated that other accommodation was likely not available, or if there was other accommodation, it was more expensive, explaining that the decision often comes down to cost-effectiveness. The Bargaining Agent explained that the commercial options are generally not explored as the grievors relied on past experience where the PNAA was paid to employees staying in another employee’s Crown-owned accommodation, but that the grievor’s sworn affidavit indicated that the grievor obtained consent from the occupant to stay at their residence during their stay.
The Bargaining Agent representative concluded by saying the Department wrongfully denied the entitlement to the PNAA, as there is an institutional component to government accommodations that does not exist for the housing in question, which shares the qualities of a private residential accommodation. Furthermore, they argued that it is unique to this department whose employees perform temporary work in the most remote and isolated communities in Canada and promotes the underlying principles of the NJC TD, due to the cost-efficiency and flexibility of arrangements taking operational requirements into consideration. In the alternative, they argued that the grievors relied on the Department’s past practice of allowing the allowance and therefore the Department is estopped from denying the reimbursement citing 2018 CA LA 7698.
Departmental Presentation
The Departmental representative explained that once the Bargaining Agent ratified the collective agreement where the Bargaining Agent opted into the NJC TD, the Department has understood that the collective agreement supersedes policies, directives, and manuals. They clarified the purpose of the NJC TD and indicated that the Department has sought guidance from TBS twice and referred to question three (3) in the 2017 Communiqué from the Government Travel Committee, which supported the TBS guidance that employees who stay in government housing and accommodation would not be entitled to the PNAA under the NJC TD while on travel status.
The Departmental representative noted that the NJC TD does not differentiate based upon the occupancy status of the Crown-owned accommodation. They presented the concept that the intent of the NJC TD is that, if the accommodation meets the definition of government and institutional accommodation, the PNAA should not be paid. They clarified that there is no authority to unilaterally reconsider the stated intent of the NJC TD, that it is reserved for the co-development process known as cyclical review at the NJC.
In response to the Bargaining Agent’s arguments, the Departmental representative provided the Department’s responses. The representative agreed that the definition of Private Non-commercial Accommodation in the NJC TD is not inconsistent with Department A’s manual but clarified that Department A’s manual included another article that specifically stated that the PNAA would be paid to employees on travel status in isolated locations and residing in a Crown-owned dwelling akin to a private place of residence. They noted that there is no such provision in the NJC TD. In fact, the 2017 Government Travel Committee Communiqué contradicts this entitlement under the NJC Travel Directive.
Regarding the interpretation of long-term or permanent rental of Crown-owned housing as Private Non-commercial Accommodation by the external review committee, the Departmental representative argued that the previous interpretations are irrelevant. They clarified that the external review committee prepares its findings in accordance with the legislation and with the general principles of administrative and labour law. Contrastingly, grievances at the NJC are decided based on the intent of the NJC TD. In this situation, they specified that the Department’s understanding is that the intent of the PNAA is to reimburse the traveller for the cost of a thank-you gift for the owner of the dwelling. Nonetheless, they reiterated that the Committee is not bound by the external review committee’s interpretations nor the Department’s past practices following those interpretations, noting that they all pre-date the grievors’ unionization.
Responding to the Bargaining Agent’s argument that the Department is estopped from denying the reimbursement based upon the Department’s past practice, the Departmental representative argued that the estoppel would have to stem from assurances or promises made that indicated that PNAA would continue to be applied this way after the ratification of the collective agreement, noting that there were several communications from the deputy minister and from Labour Relations advising that there were new terms and conditions of employment. They indicated that there were also reminders sent to managers to familiarize themselves with the various collective agreements and policies because there are several important differences between them.
The Departmental representative noted that the Department’s challenges in recruitment, retention and career paths are more apparent when it comes to isolated or remote locations. They indicated that it is common knowledge that the PNAA is perceived as an incentive to support the acceptance of relief work assignments in remote or less desirable locations. However, they emphasized that the NJC TD provides for the reimbursement of reasonable expenses necessarily incurred while travelling on government business so that the employee is not out of pocket. The representative concluded by stating that the grievors were treated within the intent of the NJC TD as they stayed in Crown housing, regardless of its occupancy status, and that to allow the payment of the PNAA could be seen as personal gain, which is explicitly stated as not within the intent of the NJC TD.
Executive Committee Decision
The Executive Committee considered the report of the Government Travel Committee and noted that it could not reach a consensus on whether the grievors were treated within the intent of the Directive. The Executive Committee was unable to reach a consensus on this issue. As such, the Executive Committee was at an impasse.