March 29, 2006
27.4.55
Six employees grieved the employer's refusal to pay the IPGH allowances, to which they are normally entitled, for the period during which they were in a legal strike. The period in question is October 12 to 15, 2004, and the recovery on their salaries, which is at issue in this grievance, occurred during the pay period of November 4 to 17, 2004.
The Bargaining Agent stated the grievors had lost the Environment Allowances, the Fuel and Utility Differential allowances and the Shelter Cost Differential allowance.
He explained that the department had applied article 1.15.1 of the Isolated Posts Government Housing Directive (IPGHD), which states that "Subject to 1.20.4 (refers to absence from work) and 1.20.5 (refers to employees suspended for acts of misconduct) and this section, employees shall not be entitled to the allowances and benefits in respect of any period during which they are: (a) granted leave without pay pursuant to an appropriate governing authority or (b) absent from duty without leave".
He argued that the employer had arbitrarily applied sub-section (b) to the striking union members and employees of the Department living in this location, though the targeted employees were participating in a legal labour dispute.
The Department quoted the Pay Administration Guide titled 'Labour Disruptions', which states in article 4.5 of the Treasury Board Policy that "Pursuant to the Isolated Post and Government Directive, there shall be deducted from the allowances, an amount equal to the period that an employee was on strike".
The Bargaining Agent representative claimed that no other Federal Department in this location denied benefits to employees except for losses pertaining to salary, which therefore argued inconsistent application in comparison to other Treasury Board departments. He argued that Treasury Board Public sector workers should be treated equally and that they expect the employer to be reasonable and fair.
He stated that it was their contention that no other federal department, or participating federal agency under the auspices of the NJC, had imposed financial losses under the IPGHD during this strike. As well, he explained that Foreign Affairs and International Trade (DFAIT) had not imposed such losses against the Foreign Affairs Directive portion of the NJC.
He stated that as far as they were aware, Treasury Board has not sought recoveries of any of its directives during past legal strikes since 1988, 1991, 1999, 2001 or in 2004, or any federal department or participating federal agencies under the NJCD. He also claimed that Treasury Board had not instructed its departments to recover IPGHD benefits for the strike period covering October 12-15th, 2004. He contended that this department, in this location, took it upon themselves to target their striking employees.
He explained that their actions were considered by the affected employees and the union as a punitive measure for recovery of these allowances because individuals were in a legal labour dispute and exercised their right to strike. He further explained that they considered it an attempt to change the intent of the NJC, IPGHD.
In response to questions from the Committee, and in rebuttal to the Employer representative's contention that all isolated posts for this department had recovered the allowances for the strike period, the Bargaining Agent representative explained that his contention was based on polling other representatives across Canada.
The Departmental representative explained that the Pay Administration Section at Treasury Board Secretariat had issued on September 27, 2004 a communication titled Pay Administration During Labour Disruptions which provided guidance on the recovery of overpayments from employees on strike. This communication referred to the FAA, Section 155(3) that requires the recovery in full of salary overpayments from the first available funds. The recovery from the grievors occurred during the pay period of November 4 to 17, 2004.
She quoted the Treasury Board policy titled Labour Disruptions (strike), Section 4.5, which reads: "Pursuant to the Isolated Post and Government Directive, there shall be deducted from the allowances, an amount equal to the period that an employee was on strike".
She quoted the Treasury Board policy titled Chapter 9 – Strikes, Appendix B – Benefits During a Strike, # 9, which read: "9. An employee who is on strike is not entitled to any of the allowances or benefits of the Isolated Posts Directive."
She also quoted the Isolated Posts and Government Housing Directive, explaining that employees on strike are on an unauthorized absence, and therefore can be considered "absent from duty without leave", as per 1.15.1 (b) of the Directive.
The Employer representative pointed out that there had been no other grievances of this nature, which she argued indicated that this was understood and was an accepted interpretation by management of the directive. She also compared it to the Bilingual Bonus, which is not part of salary, but which is also cut during a strike.
She concluded by saying that all departmental isolated posts complied with this clear direction from Treasury Board, and that the grievances should therefore be denied.
The Executive Committee considered the report of the Isolated Posts and Government Housing Committee and was unable to reach consensus with regard to clause 1.15.1 (b) "absent from duty without leave". Therefore the Committee reached an impasse.