FPSLREB Decisions

I. Group grievance referred to adjudication

1 This group grievance was filed by the Public Service Alliance of Canada (“the bargaining agent”) on behalf of Catherine Antaya, Eileen Bachmier, Monica Bassett, Glenda Burt, Ann Doumont, Darlene Easton, Sue Gill, Todd Harlow, Anne Hill, Dana Jilson, Eileen Kaye, Judith Meister, Jean Metropolit, Adele Mole, Michael Nugent, Robyn Findlater, Gary Rung, Anton Solomon, Lesley Stern, Erin Troberg, Aura Vivas, Michelle Wagner and Lorna Willems (“the grievors”) who are members of the following bargaining units: the Program and Administrative Services Group, the Operational Services Group, the Technical Services Group and the Education and Library Science Group.

2 The grievance relates to the Isolated Posts and Government Housing Directive (“the IPGHD”), a National Joint Council (NJC) directive incorporated into the applicable collective agreements for each of the above-mentioned bargaining units. Since the grievors only submitted an excerpt of the Program and Administrative Services Group collective agreement between the Public Service Alliance of Canada and the Treasury Board (expiry date: June 20, 2007; “the collective agreement”) and indicated that the language in the other collective agreements was identical, I will only refer to that collective agreement in order to keep this decision brief.

3 The grievance, which was referred to the final level of the grievance process on September 21, 2005, reads as follows:

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This is an NJC grievance. I grieve the written notification I received on Aug 25, 2005 advising me that under the Isolated Posts and Government Housing Directive as of Aug 1, 2005 Whitehorse, Yukon will no longer qualify for a Living Cost Differential (LCD) under this Directive. I further grieve that there has been a misinterpretation or misapplication of the IPGHD in this case because Statistics Canada indicated to the NJC that survey results upon which this decision was based are suspect. I submit the process is flawed and a decision based upon the current process is unfair and unreasonable, particularly given that the process is currently under review. Consultation is requested on this grievance with my PSAC representative.

…

I request that the above-noted written notification be rescinded, all copies be destroyed, that I suffer no loss of pay or benefits and that I be made whole.

…

[Emphasis in the original]

4 On October 25, 2006, the Executive Committee of the NJC, which is the final level of the grievance procedure, denied the grievance on its merits but agreed to mitigate the financial impact of the revocation of the Living Cost Differential (LCD) allowance by phasing it out over a 22-month period.

The Executive Committee agreed that the grievors were treated within the intend [sic] of the Directive as the LCD levels for isolated posts in the Yukon Territories were determined in accordance with accepted methodology, as per subsection 1.9 of the Directive.

The Committee agreed that Statistics Canada’s role in the Isolated Posts and Government Housing Directive (IPGHD) process is that of a contractual body hired to gather, analyze and present the data required to apply the methodology defined in the NJC Rates and Allowances guide. The Isolated Posts and Government Housing Committee (IPGHC) comprised of both union and the employer representatives, agreed to the methodology as described in the directive, and is the body responsible to review survey results and approve changes to the IPGHD. Following the survey conducted in September 2004 in the Yukon and British Columbia, the results and changes were approved by consensus by the IPGHC members.

At the meeting held on November 16, 2005, the Executive Committee agreed with the recommendation of the IPGHC to mitigate the financial impact in phasing-out the LCD allowance over a 22-month period, using a process found in the Directive for a decrease of the Environmental Allowance

…

5 On January 18, 2007, the bargaining agent filed a notice of reference to adjudication of the group grievance with the Public Service Labour Relations Board (“the Board”).

6 On June 1, 2007, the Treasury Board (“the employer”) advised the Board that it was raising an objection to the jurisdiction of an adjudicator to be seized of this group grievance, alleging that the grievance does not relate to the interpretation or the application of the IPGHD.

7 On August 13, 2008, the Board informed the parties that the issue of jurisdiction would be dealt with by way of written submissions. The employer submitted its arguments on August 29, 2008. The grievors’ arguments were submitted on September 5, 2008, and the employer submitted a rebuttal on September 10, 2008. On October 23, 2008, the Board requested that the grievors clarify their position on a specific question. The clarifications were submitted on October 30, 2008, and the employer submitted its comments on the bargaining agent’s clarifications on November 6, 2008.

8 After reviewing the written submissions, the Board informed the parties, on November 28, 2008, that it was taking the employer’s objection under advisement. With respect to the merits of the grievance, the Board requested that the parties submit their respective positions with respect to two specific questions. The grievors submitted their arguments on December 22, 2008, and the employer submitted its arguments on January 19, 2009. The grievors submitted a rebuttal on January 26, 2009.

9 In order to facilitate the understanding of the arguments submitted by the parties and the reasons for this decision, I will reproduce the relevant provisions of the collective agreement, the NJC By-Laws and the IPGHD before summarizing the arguments of each party.

10 The collective agreements contains the following provisions:

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7.03

(a) The following directives, as amended from time to time by National Joint Council recommendation and which have been approved by the Treasury Board of Canada, form part of this Agreement:

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Isolated Posts and Government Housing Directive

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18.01 In cases of alleged misinterpretation or misapplication arising out of agreements concluded by the National Joint Council (NJC) of the Public Service on items which may be included in a collective agreement and which the parties to this Agreement have endorsed, the grievance procedure will be in accordance with Part 14 of the NJC By-Laws.

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11 The NJC By-Laws contain the following relevant provisions:

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15.1.2 All grievances as defined under the PSLRA presented under this grievance procedure shall be decided on the basis of the intent of the directive or policy being grieved.

15.1.3 An employee who feels aggrieved by the interpretation or application by the employer of any directive or policy which has been agreed to by the Council, and which has been approved by the appropriate executive body of the government, is entitled to present a grievance.

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15.1.17 Where an employee has presented the grievance up to and including the final level of this redress procedure and the employee’s grievance has not been dealt with to the employee’s satisfaction, or the DLO has not conveyed the final level decision to the employee within 30 days from the date of the General Secretary’s letter, the employee may, with the approval of the employee’s bargaining agent, refer the grievance to adjudication in accordance with the provisions of the PSLRA, if the grievance relates to a directive or policy which has been deemed to be part of the grievor’s collective agreement according to the Memorandum of Understanding.

…

12 Finally, the IPGHD contains the following provisions:

[excerpts from the front page of the directive]

This Isolated Posts and Government Housing Directive was developed in partnership by employer and bargaining agent representatives at the National Joint Council. Its provisions form part of the collective agreement of the participating parties under the By-Laws of the National Joint Council…

…

General

Collective Agreement

This directive is deemed to be part of collective agreements between the parties to the National Joint Council (NJC) and employees are to be afforded ready access to this directive.

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Purpose and Scope

The purpose of this directive is to facilitate the recruitment and retention of staff delivering government programs in isolated locations and to ensure that employees in government housing are treated in a manner equivalent to persons renting similar accommodation from private or commercial sources.

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Responsibility

Treasury Board Secretariat shall revise relevant portions of this Directive as required from time to time on the recommendation of the National Joint Council, and advise departments and cause employees to be advised, in writing, of any changes that may affect them. Treasury Board Secretariat shall also advise departments on, and monitor their interpretation and application of, this directive.

Statistics Canada shall conduct research and surveys with respect to the Fuel and Utilities Differential and the Living Cost Differential Allowances and shall verify the Environment Allowance Levels during their survey visits and report the results to the Treasury Board Secretariat.

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Allowances

In order to qualify as an isolated post, a location must meet the criteria outlined in Part V qualifying it for an environment allowance. Qualification for an environment allowance is a prerequisite for all other allowances and, subject to 1.15.2, benefits under this directive, except for the special location allowance.

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A living cost allowance is payable at an isolated post where prices for food and other goods and services are abnormally high in comparison with the location identified as the major source of supply and is intended to assist employees to meet those higher costs.

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The amount of living cost differential depends on the price differentials, as measured by Statistics Canada, between the isolated post and its major source of supply.

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1.9 Living Cost Differential

1.9.1 Employees not subject to section 1.18 (Meals or Rations) shall be paid a living cost differential, at the rate set out in Appendix C that is appropriate to the living cost classification of their headquarter as set out in Appendix A…

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5.1 Designation

5.1.1 The locations named in Appendix A are hereby designated as isolated posts.

5.1.2 An isolated post shall have environment, living cost, and fuel and utilities classifications as set out in Appendix A.

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5.8.1 The Treasury Board Secretariat may, with respect to a location named in Appendix A, F or G, establish, vary, or revoke any classification of that location in conformance with the criteria.

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13 Appendix H of the IPGHD, which provides the criteria for determining LCD levels, states the following:

A living cost differential may be authorized at certain isolated posts where abnormally high prices prevail for food, household operations, transportation, personal care, tobacco and alcoholic beverages. This allowance becomes effective when the price of these goods and services, as measured by Statistics Canada, reaches an index level of 115 or higher in relation to an index of 100 at the major source of supply to the isolated post. When there is more than one source of supply for a region, the comparison will be made to the base city most associated with the majority of posts in the region.

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14 Appendix H also provides for different LCD levels (classifications) corresponding to different index differential ranges.

15 It appears from the July 15, 2005, version of Appendix A of the IPGHD, that Whitehorse did not have an LCD classification, as it no longer qualified for an allowance.

II. Summary of the arguments

A. Objection to the jurisdiction of an adjudicator over the grievance

1. For the employer

16 The employer’s arguments were articulated as follows:

1. The Isolated Posts and Government Housing Directive (IPGHD) form part of the applicable Collective Agreement.
   
   Collective Agreement, Article 7.03…
2. The directives that form part of the Collective Agreement are “amended from time to time by the National Joint Council (NJC)”.
   
   Collective Agreement, Article 7.03…
3. As a result of an amendment to the IPGHD made by the NJC, the employees in Whitehorse are no longer entitled to a “Living cost differential”.
   
   IPGHD, Appendix A, Classification of Isolated Posts…
4. Fundamentally, this group grievance is aimed at trying to change the content of the Collective Agreement.
5. The Collective Agreement, as it is, does not allow for payment of a “Living cost differential” to employees in Whitehorse.
6. The Board’s jurisdiction is to interpret and apply the Collective Agreement before it, as it is.
7. There is no issue of interpretation or application of the Collective Agreement in the case at hand.
8. The IPGHD forms part of the Collective Agreement and unless it is amended, the employees in Whitehorse are not entitled to a “Living cost differential”.
9. The Board has no jurisdiction to make an order that would have the effect of amending the Collective Agreement, directly or indirectly.

2. For the bargaining agent

17 The grievors argue that the grievance relates to the interpretation or the application of the IPGHD and, therefore, falls within the jurisdiction of an adjudicator under the Act.

18 The grievors articulated the core of their argument as follows:

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In particular, this is a grievance by members of the above-noted bargaining units employed in Whitehorse, Yukon, who were notified by a letter dated August 25, 2005 that they no longer qualify for a Living Cost Differential (“LCD)” under the IPGHD. The grievors allege there has been a misinterpretation or misapplication of the IPGHD, due to numerous shortcomings in the Statistics Canada survey and analysis on which the decision was based.

…

Importantly, section 15.1.2 [of the NJC By-Laws] provides that NJC grievances must be decided on the basis of the intent of the directive or policy being grieved.…

…

The grievance mechanism set out by Articles 18.01 and 37.01 of the applicable collective agreements and the NJC By-Laws clearly afford this Board jurisdiction to adjudicate grievances related to alleged misinterpretations or misapplications of [sic] arising out of NJC policies or directives, including the IPGHD.

Contrary to the employer’s submissions, and as stated in the grievance itself, the issue raised by the grievors is squarely one of interpretation or application of the collective agreement, namely the IPGHD. By this grievance, the grievors do not seek an amendment to the content of the Directive (or any other part of the collective agreement), but rather assert that the NJC’s decision to revoke the LCD entitlement of employees in Whitehorse is the result of a misapplication of the methodology set out in the directive, resulting in an outcome that is clearly contrary to the purpose and intent of the IPGHD.

The IPGHD tasks Statistics Canada with conducting research and surveys with respect to the LCD allowance, and requires Statistics Canada to report the results of its work to Treasury Board. The Directive also makes clear that it is Treasury Board that is empowered to revise the Directive, on recommendation of the NJC. Accordingly, the Living Cost Differentials for isolated posts set out in Appendix A to the IPGHD are determined by application of the Directive itself. In the present case, the grievors allege that the assumptions, methodology, and analysis applied by Statistics Canada were so flawed as to render any revisions to the LCD allowances based on this research a misapplication of Treasury Board’s authority to revise the Directive in accordance with its purpose and intent.

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[Emphasis added]

19 The Board requested that the grievors clarify their position on the following question:

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Are the grievors alleging that the collective agreement and the IPGHD itself give Treasury Board the discretion to decide not to follow the recommendation of the NJC to revise Appendix A of the IPGHD, and that in this particular case, Treasury Board should not have followed the NJC’S recommendation to amend the IPGHD?

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20 The grievors response reads as follows:

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The grievors do not take the position that the collective agreement and the IPGHD itself give Treasury Board the discretion to decide not to follow the recommendations of the NJC. Rather, the grievance alleges that assumptions, methodology, data, and analysis relied upon by the NJC to recommend revision of the LCD allowance for Whitehorse were inconsistent with the purpose and intent of the Directive. Accordingly, any reliance on this flawed and/or inadequate information constitutes a violation of the collective agreement.

By way of further clarification, the above-noted portion of the grievors’ submissions sets out the process established under the IPGHD by which the Living Cost Differentials set out in Appendix A are set, namely that Treasury Board revises the LCDs upon recommendation by the NJC, whose decision is based on research and surveys to be conducted by Statistics Canada. To be clear, the grievors are not challenging the process set out in the Directive, but rather whether the NJC properly applied that process in arriving at its recommendation for the LCDs now set out in Appendix A to the Directive.

The Directive provides that the amount of the LCD allowance for each location will depend on price differentials measured by Statistics Canada. By this grievance, the grievors allege that the NJC’s recommendation concerning the LCD for Whitehorse was based on statistical data and analysis that was flawed and inadequate for purposes of making this determination under the Directive.  In these circumstances, the grievors submit that the resulting LCD allowance is not in keeping with the Directive, the purpose and intent of which is to facilitate the recruitment and retention of staff delivering government programs in isolated locations such as Whitehorse, by providing an allowance to offset the abnormally high prices of food and other goods in these locations.

It is on this basis that the grievors’ submit the Board has jurisdiction in this matter, as the process set out in the Directive was not properly applied by the NJC when it revised the LCD for Whitehorse in Appendix A to the Directive on the basis of inadequate and/or incorrect price differential data from Statistics Canada.

…

21 The grievors referred to Dubois v. Treasury Board (Canadian International Development Agency), 2004 PSSRB 91. That case related to the employer’s refusal to grant the grievor sick leave benefits provided under the Foreign Service Directives, which were NJC directives incorporated into the collective agreement. The Foreign Service Directives provided that the employer may grant sick leave where Health Canada determines that the grievor’s absence was caused by a post-attributable injury or illness not endemic to Canada. In Dubois,Health Canada determined that the grievor’s absence was not a post-attributable illness, and consequently, the employer denied the benefits. The grievor filed a grievance contesting the employer’s decision, and the employer objected to the jurisdiction of the adjudicator. Counsel for the grievors referred to the following excerpt from Dubois:

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[48]…I must decide whether that decision by the employer was made in a manner consistent with the stipulations and intent of FSD 47. I must also assess whether Health Canada made the aforementioned two decisions based on the correct application of the intent of those directives. I cannot restrict the review of the grievance solely to the question whether the employer acted correctly on Health Canada’s decision, which would have the effect of limiting the grievance solely to the question of execution of Health Canada’s decision (as argued by the employer). The grievance procedure outlined in the Introduction to the FSDs concerns all the aspects of the directive involved in its interpretation and application…

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22 The grievors suggested the following parallel between this case and Dubois:

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It is the grievors’ submission that the circumstances in the present case are identical to the situation in Dubois. In both cases, entitlement to benefits under an NJC Directive incorporated into the collective agreement was dependant [sic] on a determination by a third-party institution with relevant expertise. In both cases, the grievance challenged the denial of benefits by disputing the findings of a third-party assessor stipulated under the Directive. Finally, in both cases the employer argued it would be inappropriate for the Board to intervene in the third-party assessment, on the basis that doing so would amount to an amendment to the collective agreement.

The grievors submit that, as in Dubois, this Board must take jurisdiction over the within grievance, and decide not only whether the employer’s decision was made in a manner consistent with the stipulations and intent of the IPGHD, but also consider whether Statistics Canada made its determinations based on the correct application of the intent of the Directive, namely the facilitation of the recruitment and retention of staff in isolated locations.

…

3. Reply of the employer

23 In its rebuttal, the employer submitted the following arguments:

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Directives and policies are cyclically reviewed and agreed to at the NJC by representatives of employers and unions. In the case at hand, the grievors do not challenge the interpretation or application by the employer of the directive, The grievors challenge the process that led to the directive agreed to by the Council. Clearly this is not something within the jurisdiction of an adjudicator.

The Dubois decision, referred to by the grievors, can be distinguished for a similar reason. In Dubois, the grievor was not challenging the directive itself, but its application by the employer…

The employer maintains that the NJC directive is part of the collective agreement and that an adjudicator has no jurisdiction to review the contents or the process that led to the contents of the directive itself. Alternatively, any remedy aimed at the process that leads to the creation of the NJC directive amounts to ordering the amendment of the collective agreement.

…

24 In its response to the bargaining agent’s clarification, the employer added the following comments:

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The parties to the collective agreement agreed to be subject to the NJC directives, as amended from time to time. The parties could have opted not to include “as amended from time to time” in the collective agreement. Employer and unions representatives sit on the NJC and agree on the modifications to be made to the directives. When a directive is modified, sometimes employees gain something and a more onerous obligation is created for the Employer, sometimes some employees lose something. It goes both ways and the parties agreed to that. When a directive is modified, there is a change in the mutual obligations of the parties under the collective agreement. This change in the mutual obligations of the parties goes to the contents of the collective agreement, not its application or interpretation by the Employer and therefore cannot be grieved.

…

B. Questions asked about the merits of the grievance

25 The parties were asked to submit their position on the following questions:

1) Does the collective agreement, and more precisely the IPGHD, allow an adjudicator to assess the reliability of the surveys and measurements conducted by Statistics Canada?

2) The grievors allege that the research and surveys conducted by Statistics Canada with respect to the price differential measurement for Whitehorse were flawed and that the NJC relied on that flawed/inadequate information to recommend the amendment of the IPGHD. Assuming that the above facts are proven, does the collective agreement, and more precisely the IPGHD, provide an adjudicator with the jurisdiction to set aside the NJC’s recommendation to amend the IPGHD?

1. For the grievors

26 The grievors mainly articulated their position on the first question as follows:

…

The collective agreement, which by incorporation includes the IPGHD, grants adjudicators jurisdiction to hear grievances alleging misinterpretation or misapplication the IPGHD. It is the grievors’ position that this jurisdiction cannot be so restricted as to preclude consideration of the factors informing the NJC’s recommendations to Treasury Board, including the surveys and measurements conducted by Statistics Canada.

…

…There is nothing in either the applicable collective agreements or in the NJC By-Laws to suggest that the Board’s jurisdiction in respect of such grievances is in any way constrained or otherwise restricted beyond the Board’s jurisdiction in matters arising out of any other part of the collective agreement. The grievors submit that, just as the Board is empowered to consider all of the factors underlying a disciplinary action or any other adjudicable matter, the Board must consider Statistics Canada’s findings in assessing whether the NJC’s recommendations were made in accordance with the purpose and intent of the IPGHD.

The grievors note that the employer cites no authority for its position that the Board lacks jurisdiction in respect of this matter. Rather, the employer simply asserts that “it goes both ways and the parties agreed to that,” suggesting that the parties are bound to accede to any adjustment to the IPGHD that is based on any information furnished by Statistics Canada, without any regard for the thoroughness or reasonableness of that work. The grievors submit that this surely must not be the case. One can easily imagine any number of scenarios in which, for whatever reason, the work presented by Statistics Canada may be deemed unsatisfactory by either the employer or employees. In the grievors submission, the collective agreement and NJC By-Laws contemplate such a possibility and offer a clear, reasonable means for reviewing recommendations based on such erroneous data, namely the established NJC review processes, including grievances pursuant to Articles 18.01 and 37.01 of the applicable collective agreements, and subsequent reference to adjudication by the Board in accordance with section [sic] and 15.1.17 of the NJC By-Laws.

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[Emphasis in the original]

27 The grievors replied as follows to the Board’s second question:

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As with any other adjudicable grievance, the Board’s jurisdiction to order a remedy in respect of a grievance concerning an NJC directive is set out by the PSLRA.

Section 15.1.17 of the NJC By-Laws states that grievances alleging misinterpretation or misapplication of an NJC directive may be referred to adjudication in accordance with the provisions of the PSLRA. The PSLRA provides that, while adjudicators are precluded from making an order requiring that a collective agreement be amended, they are nevertheless clearly empowered by subsection 228(2) of the Act to make any order they consider appropriate in the circumstances of the case. Accordingly, the grievors submit that an adjudicator has the jurisdiction to make an order setting aside the NJC’s recommendation to amend the IPGHD.

In this regard, the grievors submit that it is helpful to consider the provisions concerning policy grievances under section 232 of the PSLRA. Section 232 expressly limits an adjudicator’s powers in the context of policy grievances relating to matters that were or could have been the subject of individual or group grievances…

…

The grievors submit that, in circumstances such as the present case, where the adjudicator is clearly not restricted by the limitations expressly set out in section 232 of the PSLRA, it is certainly well within the Board’s jurisdiction to make an order setting aside the NJC’s recommendation to amend the IPGHD. Indeed, the grievors submit that in the present case, subsection 220(2) of the PSLRA grants the adjudicator jurisdiction to make any order he or she considers appropriate in the circumstances of the case, short of amending the terms of the collective agreement or the IPGHD itself.

…

[Emphasis in the original]

2. For the employer

28 In its January 19, 2009 reply, the employer articulated its position as follows:

…Both questions asked by the Board should be answered in the negative, for the following reasons.

…

Clause 18.01 of the collective agreement is clear: the grievance procedure in regard to NJC items is limited to the grievance procedure contained in the NJC By-Laws.

Clearly, in the case at hand, the grievors are not “aggrieved by the interpretation or application by the employer of any directive or policy which has been agreed to by the Council”. Only this redress procedure can be referred to adjudication under the PSLRA. However, the grievors are challenging the directive itself or, in other words, how the Council agreed to the directive.

It is worth noting that the National Joint Council and its committees are composed of representatives from federal public service employers as well as unions, including the Public Service Alliance of Canada. Clearly the parties at the NJC negotiate the contents of the directives and the methodologies used to agree to those directives.

Part 7 of the NJC By-Laws provides for the referral of subjects or items to the Council for consultation. Every party gets an opportunity to input in reviews or opt out of directives under Parts 8 and 9. Part 11 of the NJC By-Laws deals with how the Council should resolve impasses, which may ultimately be resolved by binding third party arbitration. Under 12.1, the Executive Committee may refer an item for consultation outside the cyclical review schedule specified under Part 7.

In the Employer’s view, this is how concerns in regard to the directives of the NJC or any methodology used by the NJC or its committees should be addressed.

The Employer submits that the application and interpretation of the directive by the Employer can be grieved, but not the content of the directive or the methodology applied by the employers and unions who compose the NJC to agree to that directive. Again, the Dubois decision referred to by the grievors is to be distinguished as it deals with the application of a directive by the employer, not how the directive was agreed to by the Council.

The Employer submits that the possibility to grieve the content of a directive itself and how the NJC agreed to a directive is not supported by the collective agreement, the Isolated Posts and Government Housing Directive, the NJC By-Laws and the Public Service Labour Relations Act. The Employer submits that the Board does not have jurisdiction to adjudicate such matters including the case at hand.

The methodology agreed to by the Council and applicable to the directives is tantamount to collective bargaining. NJC directives are items included in the collective agreement. There are mechanisms in place that allow any party to seek the review of a directive. The nature of the exercise is not an application or an interpretation by the Employer of the applicable provisions of a directive that could have the effect of aggrieving the employees.

Nothing short of amending the IPGHD can provide the grievors with the remedy they directly or indirectly seek, i.e. get an isolated post allowance. The IPGHD is incorporated to the collective agreement and the Employer maintains that an Order amending the IPGHD would amount to amending the collective agreement which, at the time the PSLRB was seized of this matter, did not provide for the payment of an isolated post allowance to the grievors.

For these reasons, the Employer requests that the grievance be dismissed for lack of jurisdiction. The Employer submits that evidence on the methodology used by the Council, including the survey results and advice provided by Statistics Canada as technical advisors, is not necessary to make this ruling.

3. Grievor’s rebuttal

29 The grievors replied to the employer’s arguments as follows:

…

…it is important to note that the matter now before the Board is a group grievance by public service employees in Whitehorse, concerning action taken by their employer arising from a decision by the IPGHD Committee of the NJC. The employees filed this NJC grievance pursuant to section 15 of the NJC By-Laws and, in accordance with those provisions, have now referred the matter for adjudication by the Board.

The employer asserts that, in the present case, the grievors are not “aggrieved by the interpretation or application by the employer of any directive or policy which has been agreed to by the Council,” as per section 15.1.3 of the NJC By-Laws. Despite the employer’s assertion to the contrary, the present case raises exactly this concern. Specifically, the grievance, presently before the Board alleges that the revocation of the LCD entitlement for employees in Whitehorse is the result of a misapplication of the methodology set out in the IPGHD, resulting in an outcome that is clearly contrary to the purpose and intent of the Directive.

The grievors submit that, in accordance with the procedure set out in section 15.1.17 of the NJC By-Laws, the Board clearly has jurisdiction to adjudicate NJC grievances arising out of the interpretation or application of NJC directives. In these circumstances, the grievors submit that the Board must take jurisdiction to adjudicate the present grievance, which concerns the interpretation and application of the NJC’s Isolated Posts and Government Housing Directive.  

…

The methodology agreed to by the NJC is simply that “Statistics Canada shall conduct research and surveys with respect to […] the Living Cost Differential Allowances and shall […] report the results to the Treasury Board Secretariat.” The grievance now before the Board concerns whether the instructions provided to Statistics Canada and the methodology it subsequently applied in conducting its research and surveys were consistent with the purpose and intent of the Directive. The grievors submit that, in order to make a determination in this regard, the Board must take jurisdiction and hear evidence from the parties concerning the precise instructions that were given to Statistics Canada, the methodology it applied in conducting its research and surveys, and the nature of the findings and recommendations it reported to the Treasury Board Secretariat.

…

The grievors stress that this grievance does not ask the Board to amend the IPGHD itself. Rather, the grievance form clearly requests that the employer’s notice be rescinded, and that the grievors suffer no loss of pay or benefits to which they are entitled. Accordingly, the grievors are seeking only that the NJC’s recommendation to amend the determination of the LCD for Whitehorse under Appendix “C” to the Directive be set aside, if that recommendation is found to have been based on a misinterpretation or misapplication of the IPGHD by Statistics Canada in the course of its research and surveys concerning the LCD for Whitehorse.

…

Determination and implementation of methodology is the central issue in the grievance

The employer asserts that it is clear that the parties at the NJC negotiate the contents of the directives and the methodologies used to agree to those directives. However, it is not the NJC that retains, instructs, or directs Statistics Canada in respect of the research and surveys it conducts with respect to the LCD allowances.

The present case puts the mandate given to Statistics Canada, and the methodology applied in the conduct of its research and surveys, squarely in issue. Although the written notice given to employees asserts that changes to the LCD were made “in accordance with approved methodologies,” the grievors allege that the decision to revoke the LCD entitlement of employees in Whitehorse is the result of a misapplication of the methodology set out in the Directive, resulting in an outcome that is clearly contrary tot he [sic] purpose and intent of the IPGHD.

[Sic throughout]

[Emphasis in the original]

III. Reasons

30 This group grievance was filed within the following factual context: Statistics Canada conducted a survey in 2004 and remeasured the price differentials and the resulting LCD allowances for British Columbia and the Yukon, with the result that employees posted to Whitehorse no longer qualified for an LCD allowance. The NJC’s Isolated Posts and Government Housing committee endorsed Statistics Canada’s results and the NJC recommended to the Treasury Board that it amend the IPGHD accordingly, which it did.

31 Through their grievance, the grievors are challenging the decision to amend Appendix A of the IPGHD.

32 The grievors base their arguments on the allegation that Statistics Canada misapplied the methodology set out in the IPGHD when it measured the LCD allowances. In their view, Statistics Canada’s assumptions, data and analysis were flawed to the extent that they resulted in an outcome that is contrary to the purpose and intent of the IPGHD. For the grievors, amending the IPGHD based on that flawed data constitutes in itself a misinterpretation or misapplication of the IPGHD and, therefore, a violation of the collective agreement.

33 At first glance, the grievance seems to challenge the employer’s decision to amend Appendix A of the IPGHD. However, in reply to a question asked by the Board, counsel for the grievors indicated that they do not take the position that the employer had the discretion to disregard the NJC’s recommendation but rather took issue with the NJC’s recommendation to amend the IPGHD. The grievors contend that I must assess the surveys and analysis conducted by Statistics Canada and that I must set aside the NJC’s recommendation to amend the IPGHD if I conclude that it was based on Statistics Canada’s misinterpretation and misapplication of the methodology set out in the IPGHD. The employer, for its part, objects to my jurisdiction to hear the grievance, alleging that it does not raise an issue of interpretation or application of the IPGHD.

34 The jurisdiction of an adjudicator over an NJC grievance must be determined in light of the applicable provisions of the Public Service Labour Relations Act (“the Act”), the NJC By-Laws and any applicable collective agreements.

35 Subsection 215(1) of the Act defines the scope of a group grievance and states that a group grievance can be presented where the employees concerned feel aggrieved by the interpretation or the application of a provision of a collective agreement or an arbitral award. Clause 7.04 of the collective agreement states that grievances with respect to the NJC directives that form part of the collective agreement must be filed in accordance with clause 18.01. Clause 18.01, for its part, states that the grievance procedure provided by the NJC By-Laws is applicable in cases of alleged misinterpretation or misapplication arising out of agreements concluded by the NJC. Subsection 15.1.3 of the NJC By-Laws prescribes the circumstances under which an employee may file a grievance. It provides that the person entitled to present a grievance is the “…employee who feels aggrieved by the interpretation or application by the employer of any directive or policy which has been agreed to by the Council…[emphasis added].”

36 In my view, subsection 15.1.3 of the NJC By-Laws sets the conditions that must be met for a grievance to be properly filed with respect to an NJC directive. The issue must relate to a situation where an employee challenges the manner in which the employer interpreted or applied the directive to his or her situation, and the way the employer views and applies the content of the directive must be at issue. In this case, it is undisputed that the employer applied the IPGHD in accordance with its express terms. Appendix A does not provide that an LCD allowance is payable to the employees who are posted in Whitehorse and, accordingly, the employer did not pay any LCD allowance to those employees.

37 I agree with the employer that the issue in this case does not concern the employer’s conduct but rather the decision made by the NJC, the author of the directive, to endorse the results obtained by Statistics Canada and to recommend amending Appendix A of the IPGHD. The grievors are questioning the decision-making process followed by the NJC and, ultimately, the content of the IPGHD. Such an issue cannot be considered a “grievance” as defined by subsection 15.1.3 of the NJC By-Laws. Solely on that basis, I conclude that I do not have jurisdiction over this group grievance.

38 Even if I had concluded that the group grievance fell within the definition of “grievance” encompassed by subsection 15.1.3 of the NJC By-Laws, I would still have concluded, for the following reasons, that I am not empowered to set aside the NJC’s recommendation to amend Appendix A of the IPGHD.

39 The scope of an adjudicator’s jurisdiction with respect to a dispute arising out of an NJC directive must be determined by analyzing the content of the directive and, more specifically, the governing framework agreed to by the parties. The IPGHD has two aspects, one that describes specific terms and conditions of employment applicable to employees who work in isolated posts and one that describes the mechanism agreed to by the members of the NJC to amend or revise the directive.

40 In my view, when a dispute concerns an amendment to a directive, the first role of an adjudicator is to determine whether the directive was amended in accordance with the governing framework set out in the directive itself.

41 In this case, it is clear to me that the governing framework was respected. Clause 7.03 of the collective agreement states that the directives that form part of the agreement, the IPGHD among them, are the directives that are identified “…as amended from time to time by National Joint Council recommendation and which have been approved by the Treasury Board…” The IPGHD, for its part, provides that the Treasury Board shall “…revise relevant portions of [the] directive as required from time to time on the recommendation of the National Joint Council…” It is undisputed that the Treasury Board amended Appendix A of the IPGHD following the NJC’s recommendation and that the amendment reflects that content. It is also clear that the NJC was empowered to recommend an amendment to the directive. Moreover, nothing would have prevented the NJC from deciding not to endorse the results provided by Statistics Canada.

42 What the grievors are requesting is that I assess the NJC’s decision-making process and determine whether it respected the purpose and intent of the IPGHD. For the following reasons, I do not consider that such an exercise falls within my jurisdiction.

43 If the IPGHD was limited to providing a process to determine and revise the LCD allowances, I would have concluded that an adjudicator has jurisdiction to assess the decision-making process leading to a decision to amend the directive and, along the way, the measurements conducted by a third party that formed the basis of the decision. However, in this case, the LCD allowances, resulting from the measurements done by Statistics Canada and the endorsement of those results by the NJC, are incorporated in the directive; Appendix A, which contains the outcome of the NJC’s decision, forms part of the directive and, therefore, of the collective agreement. Once the IPGHD has been amended, the amendment forms part of a revised version of the directive. Therefore, by challenging the NJC’s decision to endorse Statistics Canada measures and results and to amend the IPGHD accordingly, the grievors are challenging the content of the IPGHD, not its interpretation or its application in specific circumstances.

44 I consider that the interference of an adjudicator in the decision-making process of the members of the NJC would not only fall outside his or her jurisdiction, it would also jeopardize the autonomy of the NJC and of the parties to the collective agreement to negotiate and agree to the content of the NJC directives and the collective agreement. As long as the parties agree on provisions that are not illegal, they are free to decide the content of the collective agreement.

45 The grievors may well disagree with the NJC’s approach on the basis that it allegedly endorsed results that came from a misapplication of the methodology set out in the IPGHD and that it did not respect its purpose and intent, but adjudication is not the appropriate forum for such a discussion. The grievors are free to address their demands to the NJC and to use the different means provided by the NJC By-Laws to revise the content of NJC directives. 

46 The grievors contend that they are not asking that I amend the IPGHD but, rather, that I rescind the employer’s notice to the grievors that Whitehorse no longer qualified for an LCD allowance. Considering that the measurements conducted by Statistics Canada were endorsed by the NJC and were incorporated into Appendix A of the IPGHD, I consider that the remedy sought by the grievors amounts to seeking an amendment to the collective agreement. Should the allegation that Statistics Canada’s application of the methodology was flawed and not consistent with the intent of the IPGHD be proven, I cannot see how I could allow the grievance without changing the terms and content of the IPGHD, and section 229 of the Act prevents me from rendering a decision that would “…have the effect of requiring the amendment of a collective agreement…”

47 This case is distinct from Dubois. In that case, the directive at issue gave Health Canada the mandate to assess an individual’s medical condition and to determine if that person’s condition corresponded to a post-attributable illness not endemic to Canada. The grievor in that case was challenging Health Canada’s results of her situation. It is important to note that the directive at issue was limited to providing a process to assess the medical condition of employees and that the “results” of the assessments were not incorporated into the directive and, therefore, did not form part of the content of the collective agreement. In addition, in Dubois, the grievor was challenging the employer’s application of the directive at issue. In this case, the grievors are not challenging the employer’s application of the directive; they are, rather, challenging the decision made by the author of the directive, the NJC, to recommend its amendment. Moreover, the outcome of the mandate performed by the third party is incorporated in the directive and forms part of the collective agreement. Therefore, I do not consider that the findings in Dubois are applicable to this case. 

48 For all of the above reasons, I make the following order:

IV. Order

49 The grievance is denied.

March 2, 2009.

Marie-Josée Bédard,
adjudicator