Commuting Assistance Allowances

The employee at Institution W grieves management's decision not to reinstate the commuting allowance and to pay any retroactive monies owed contrary to the spirit of the PSSRB adjudication decision in Baker et al. The grievor requested the immediate reinstatement of the commuting allowance, retroactive payment in full, including interest for retroactive monies.

Employees at Institution W 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 or about March 10, 1997, which were denied and transmitted to the second level within the next month or so.  The grievances were denied at second level in November of 1997.  In the spring of 1999 the Department agreed to review the commuting assistance issue jointly with the union for Institution W (and other locations), taking into consideration the above-mentioned PSSRB decision. The present grievances were held in abeyance pending the results of this study.  The review determined (in June 2001) that there was a suitable residential community within 16 kilometers of Institution W and that the allowance would not be reinstated.  The Department transmitted the grievances to the NJC on May 8, 2002.  The Bargaining Agent has asked that the grievances now be addressed at the final level.

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  He then noted that by the time the results of the study were released in late 2001 the previous bargaining agent had been replaced by his union.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.

It was noted that the issue of timeliness had been raised by the Department, and referred the Committee to the written representations previously submitted to the NJC.  In addition, he referred to a letter that was given to the new bargaining agent grievance coordinator at Institution W dated October 4, 2001, which includes many of the grievances in the present group, showing they were still considered active at that date.

The Bargaining Agent representative stated that the union agreed with the study, that the criterion addressing the unavailability of public transportation (1.1.1(a)) was met.  However, the 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.  He then outlined several reasons why this was so.

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, then only 86 of the 92 necessary housing units identified by the study would be available for the number of staff employed at Institution W.

Second, the study determined the vacancy rate for the whole 16 kilometers area , including several communities that do not have any facilities themselves.  These, therefore, should not have been considered by the study.  A number of the 86 available housing units found by the study are in these communities or are rural, and thus do not have any schools, daycare or health care facilities or social or recreational services.  Thus only one community in the 16 kilometers zone should be considered suitable, and its vacancy rate was not such that the majority of employees could reside there.

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.

Fourth, the number of housing units that the study required was based on an 82% response rate to the study's survey of employees at Institution W.  The Bargaining Agent representative believed that a figure of 115 required units is a more realistic assessment, based on the full complement of employees at that time, and assuming that those who responded are representative of those who did not, as far as place of residence is concerned.

For all of these reasons, the Bargaining Agent representative maintained that insufficient housing units were available in suitable residential communities to house the majority of the employees of Institution W. Therefore, the grievances should be upheld.

The Bargaining Agent representative reasoned 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 then referred to parts of that study that show that its criteria had been jointly discussed and approved, and then made her arguments for the Department.

First, according to the study there were sufficient vacant housing units within a 16 kilometers road distance from Institution W to accommodate the majority of its employees.  She 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, and that there were adequate road connections to the worksite.

Third, the Departmental representative agreed with the Bargaining Agent and the study that there was no public transportation to and from the Institution.  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.  She also noted that the employees of Institution Z, where Commuting Assistance had been reinstated by the PSSRB decision, were found in this study to no longer qualify for Commuting Assistance.

The Government Travel Committee requested clarification regarding the 15 vacant lots identified, and the location of the 85 available units within the 16 kilometres zone.  The Departmental representative was asked to react to Bargaining Agent's concerns about the methodology used by the study to determine the vacancy rate.  In response, she stated that the Department accepted the findings of the study, and that no assumption was made regarding the non-responsive 18%.

Some evidence was received from a member of the Bargaining Agent in attendance at the hearing, that the 15 vacant lots identified in the study were still vacant as of the hearing date.

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 was problematic, as these potential housing units may never be realized, and were not available for occupancy at the time of the study. Without the inclusion of the vacant lots, there was insufficient housing within the 16 kilometers area to meet the needs of the majority of employees at Institution W. Therefore, the Committee agreed that the grievors had not been treated within the intent of the Directive, and that the grievance be upheld.

As for the issue of timeliness, there seems to have been general agreement between the parties that these grievances would be held in abeyance pending the results of the study. In these particular circumstances, the Committee agreed that the grievances be considered timely.

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. Therefore, the Executive Committee agreed that the grievors be found to have not been treated within the intent of the Commuting Assistance Directive since June 28, 2001.

The grievance was upheld.