Commuting Assistance

The employees at Institution X grieved management's decision not to pay commuting allowance contrary to a recent decision rendered in favour of paying employees at Institution Z. It was noted that, at this juncture, there is no community within a 16 kilometers radius of Institution X that provides public transportation to the worksite. Nor is there a community within a 16 kilometers radius that has suitable housing vacancy rate that would accommodate ½ the staff at this worksite. The grievors requested that management reinstate commuting allowance at Institution X and pay the grievors retroactively for commuting allowance owed.

Employees at Institution X had received the commuting assistance allowance from an unknown date until 1993, when it was discontinued based on the findings of an internal study.  In 1997, the grievors became aware of a decision by the Public Service Staff Relations Board (PSSRB), which had ordered the reinstatement of the commuting assistance allowance at Institution Z. The grievors presented their grievances on April 4, 1997, which were denied and transmitted to the second level that same month.  In spring 1999, the Department agreed to review the commuting assistance issue jointly with the union for Institution X (and other locations), taking into consideration the above-mentioned PSSRB decision. The review determined, in July of 2001, that there was a suitable residential community within 16 kilometers of Institution X and that the allowance would not be reinstated. These grievances were then denied at second level on December 5, 2001, and transmitted to the final level soon thereafter.

The Bargaining Agent representative began by reviewing the chronology of these grievances, noting that all commuting assistance-based grievances at this employer seem to have been held in abeyance pending the results of the study agreed to in 1999.  He then noted that by the time the results of the study were released in late 2001 the previous bargaining agent had been replaced by his union.  He stated that the current bargaining agent did not disagree with the terms of the subject study or its data, just with the conclusions reached.

The union representative agreed with the study that the criterion addressing the unavailability of public transportation (1.1.1(a)) was met and, also agreed with the methodology used in the study, which considered the aggregate of Institution X and its close neighbour Institution Y in the study's analysis.

The Bargaining Agent representative did not agree with the conclusion of the study that found that a suitable residential community (as defined) within 16 kilometers of the worksite did exist for the following reasons.

First, the vacancy rate was determined by including serviced vacant lots, which is contrary to the relevant PSSRB decision.  If vacant lots are not used in this calculation, only approximately half of the necessary housing units would be available for the number of staff employed at Institutions X and Y, thus there could be no suitable residential community for Institution X.

Second, the study identifies several communities as contributing to the vacancy rate which do not have adequate facilities or connections to the worksite.  These, therefore, should not have been considered by the study.

Third, not all of the housing that may be vacant will be reasonably suitable as a residence for the individual employees, given the condition or pricing of a particular vacancy. Thus a reasonable vacancy rate would be even lower than the study found.

The Bargaining Agent representative then maintained that the allowance should be restored retroactively to its abolition in 1993, as there is data from the internal study that could show that there were insufficient vacant units at that time.  Additionally, the grievors should not be penalized for their patience while the new study was carried out.

The Departmental representative began by again reviewing the chronology of these grievances.  She referred to an agreement, dated December 23, 1999, between the Department and the then-Bargaining Agent that set out the Terms of Reference for the most recent study.  She noted parts of that study that show that its criteria had been jointly discussed and approved.  Then, after very briefly referring to the arguments of the Bargaining Agent, she advanced those of the Department.

First, according to the study there were sufficient vacant housing units within a 16 kilometers road distance from Institutions X and Y to accommodate the majority of their employees.  The Departmental representative indicated that since the study's criteria had been jointly approved, the use of the vacant lots in that calculation should not be an issue.

Second, she reiterated that the study had found that there were sufficient facilities in the 16 kilometers radius at issue, specifically daycare facilities and health care professionals.

Third, the Departmental representative agreed with the Bargaining Agent representative and the study, that there was no public transportation to and from the Institutions.  However, since the requirement for a suitable residential community had been met, according to the study, the grievors were treated within the intent of the Commuting Assistance Directive.

The Government Travel Committee requested further information regarding the vacant lots which had been identified. According to the study, 142 vacant housing units were required to house the majority of the employees at the Institutions.  Seventy-three existing residences were available at the time of the study, and 175 vacant lots, which were owned and serviced by developers and ready for sale on a pre-sale basis. The Departmental representative indicated that, according to the study, the developers could build 30 to 57 housing units on these lots in a 12-month period.

The Committee also inquired about the cost of these new units, and the wages of the employees at these Institutions.

The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded that the inclusion of vacant lots in determining the vacancy rate for a particular Institution is problematic, as these potential housing units may never be realized, and are not available for occupancy at the time of the study. Without the inclusion of the vacant lots, there is insufficient housing within the 16 kilometers area to meet the needs of the majority of employees at Institution X. Therefore, the Committee agreed that the grievors had not been treated within the intent of the Directive, and that the grievances be upheld.

As for the issue of retroactivity, the evidence available regarding the vacancy rate is only applicable to the time of the study. The Committee noted that other changes in Commuting Assistance at other Institutions that came out of the study were made as of the date of the issuance of the various reports. Thus the Committee agreed that the grievors be found to have not been treated within the intent of the Commuting Assistance Directive since July 5, 2001.

The grievance was upheld.