Commuting Assistance

The employees are grieving the employer's decision to revoke the commuting assistance allowance, in April 1993, pursuant to the Commuting Assistance Directive, based on an allegedly inaccurate and incomplete study by Public Works Canada. The employees requested the reinstatement of the application of the commuting assistance allowance, retroactive to April 1, 1993.

Employees at institution X had received the commuting assistance allowance since 1986. Based on the findings of a study by Public Works Canada in 1991, the allowance was revoked in 1993. In 1998, the grievors discovered a decision by the Public Service Staff Relations Board (PSSRB), which had ordered the reinstatement of the commuting assistance allowance at institution Y. Subsequently, the grievors requested the Department reinstate the allowance for employees at institution X. The request was sent to headquarters in order to consider its legitimacy. When no response was received, the grievors presented a grievance. In spring 1999, the Department agreed to review the request jointly with the union for institution X and in accordance with the above-mentioned PSSRB decision. The review determined that there was a suitable residential community within 16 kilometers of institution X and that the allowance would not be reinstated.

The Bargaining Agent representative began by referring to the study done in 1991, arguing that it was based on false premises and that employees at institution X should have continued to receive the commuting assistance allowance. The Bargaining Agent representative then focused on the contents of the second study, completed in 2001, and which also, in her opinion, is based on false premises.

Pursuant to section 1.1.2(b) of the Commuting Assistance Directive, the first part of the study involved analysing the employee distribution, that is, verifying the criterion of the Directive to the effect that if the majority of employees reside within 16 kilometers of the worksite, the residential community is considered to be suitable. The study found that the majority of employees at institution X reside outside the radius.

The second part of the study focused on residential communities, thus an evaluation of the access routes and available services. The study considered communities A, B and C to be a single residential community for the purposes of the study, which the Bargaining Agent representative took exception to, considering it to be an error in methodology. She expressed her disagreement with the fact that the PWGSC study considered communities A and B to be major towns. She also maintained that, to meet the intent of the Directive, each of these communities should have been considered individually for the purposes of evaluating whether the criteria set out in the Directive were met.

All things considered, the Bargaining Agent representative's review led her to conclude that only community C could be considered in the evaluation of the minimum criteria. Community C, compared with communities A and B, is the one with the most services, a school and commercial establishments, which seems to meet the minimum criteria for a residential community. However, she demonstrated that these services are very limited, again calling into question the suitability of the community under the Directive.

Pursuant to the Directive, it is also necessary to determine whether community C can accommodate the majority of employees at institution X. The Bargaining Agent representative reported that casual employees allegedly had to be included in the study to raise the number from 219 to 255 employees. She presented her figures, which showed that community C must contain 70 housing units. The union informed the members that it had carried out a real estate study recently, which identified five houses for sale in community C. Notwithstanding all of this, she maintained that the PWGSC studies failed to show that communities A, B and C, combined as a single residential community, could accommodate the minimum number of vacant housing units where more than 50% of employees could reside.

The Bargaining Agent representative, therefore, concluded that the criterion of a suitable residential community within 16 kilometers of institution X had not been met, either in the PWGSC study or in the review by the union. She also pointed out that the study had established that there was no adequate public transportation available in any of the communities.

The Departmental representative first presented an objection to the grievance being heard on the merits because it was not presented within the timelines. The grievance was presented in 1998, approximately six years after the grievors were informed that the allowance would be revoked. She maintained that even taking into consideration the PSSRB decision of 1996, the grievance is still outside the time limits. Notwithstanding this objection, the Departmental representative proceeded with her arguments, which consisted in comparing the Department's position to that of the grievor's objections with respect to the content of the 1992 and 2001 studies. She worked to illustrate the legitimacy and validity of the studies, thus justifying revoking the allowance.

The 1991 study involved determining the availability of housing to meet the majority criterion set out by the Directive. Since 79 of 167 employees already lived within 16 kilometers, the study had to determine if there was housing for 4.5 additional employees within the radius in order to reach the majority. The grievors had questioned including all six communities within the radius, because three of them were only slightly within the distance. The Departmental representative reasoned that these three communities had no impact on the review of vacant housing because there was enough housing within the other three non-disputed communities to handle the majority. In addition, the 2001 study, which was to find out if 48 additional employees could live in communities A, B and C, identified 46 available units. The study did not take into account cottages for sale, was not carried out during the peak annual period for the real estate market, and it is likely that some properties for sale were unintentionally omitted from the study. She, therefore, maintained that the number of housing units would definitely have been higher. She pointed out that 60 of the 216 employees of institution X lived within the area.

During the 1991 housing study, the grievors objected to the fact that the statistics from the June 1991 census by Statistics Canada and the Canada Mortgage and Housing Corporation were not available, and, therefore, not included in the study. The Departmental representative confirmed that the statistics had been taken into account when the study was completed and the analysis of the availability of services was conducted.

In response to the criticism of inaccurate results from estimates of the number of units to be built and the houses for sale in the coming year, the estimates included in the study had no value added in the analysis because it had been established, as shown earlier, that the vacancy rate was high enough to accommodate the majority of employees at institution X.

The grievors also questioned the services available within 16 kilometers, claiming they were not adequate. The Departmental representative is of the opinion that they meet the criterion established by the Directive, that is, they must be suitable. The suitable residential community identified has all of the minimum services required.

The Departmental representative maintained that, by all accounts, the first study was complete and accurate. Further, the companion study done in 2001 corroborated the findings of the first to the effect that there was, and there still is today, a suitable residential community within a 16 kilometers direct road distance of institution X and that the commuting assistance allowance is no longer required. Furthermore, she informed the Committee that the allowance that was reinstated after the PSSRB decision had subsequently been revoked following the 2001 findings.

The Executive Committee considered and agreed with the report of the Government Travel Committee which concluded that the bipartite report dated June 2001 was reasonable in that it found there existed a suitable residential community where the majority of employees could reside, that adequate utilities, educational and commercial facilities were available and suitable, and that there existed adequate road connections to the worksite. The Committee therefore found that the employees were not entitled to the commuting assistance allowance and that they were in fact treated within the intent of the Commuting Assistance Directive.

The grievance was denied.