Date: 20250219

File: 566-02-47161

 

Citation: 2025 FPSLREB 20

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

PATRICIA FREER AND OTHERS

Grievors

 

and

 

TREASURY BOARD

(Canada Border Services Agency)

 

Employer

Indexed as

Freer v. Treasury Board (Canada Border Services Agency)

In the matter of individual grievances referred to adjudication

Before: Christopher Rootham, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievors: Aaron Lemkow and Meaghan Dunk, counsel

For the Employer: Philippe Giguère, counsel

Decided on the basis of written submissions,
filed September 26, October 25, and November 22, 2024.

REASONS FOR DECISION

I. Overview

[1] This grievance is about whether federal public servants who live in Canada and commute by car to work in the United States are entitled to benefits under the National Joint Council’s (“NJC”) Foreign Service Directives (“FSDs”) or Travel Directive for the costs of their commutes.

[2] I have concluded that they are not entitled to benefits under the FSDs. While the employees meet the technical definition of “foreign assignment employees” so that they fall within the scope of the FSDs, they are not eligible for any of the specific benefits available under the FSDs. Moreover, the employer is not obligated to exercise any discretion it may have to pay them additional benefits or compensate them for the cost of their commutes.

[3] I have also concluded that they are not in “travel status” for the purposes of the Travel Directive. Their place of work is in the United States, which means that they are not eligible for benefits under that directive for travelling to and from work.

[4] Therefore, I deny the grievance. My reasons for these conclusions follow.

II. Background to and procedural history of the grievances

A. Factual background

[5] This case is about 49 grievances filed by 14 grievors. All the grievances are against the denial of either “travel status” or specific monetary claims for travel expenses between February 1, 2015, and November 7, 2016. A list of the grievors is set out in Appendix A to this decision.

[6] The grievors are all border services officers who worked in the NEXUS operations of the Canada Border Services Agency (“CBSA”). NEXUS is a trusted traveler program run jointly by the CBSA and United States Customs and Border Protection (“USCBP”). It allows pre-screened travelers to expedite processing when crossing the Canada-US border. Applicants must complete an interview with both the CBSA and USCBP.

[7] Before January 15, 2015, the grievors worked at the CBSA point of entry along the Canada-US border between British Columbia and Washington state, known as the “Pacific Highway Port of Entry”. The grievors would report to work on the Canadian side of the border. Sometimes, they worked in an office on the Canadian side, and on other days, they walked or drove across the border to the USCBP office at that port of entry, where they interviewed NEXUS applicants.

[8] On January 15, 2015, the USCBP moved its NEXUS enrolment centre from the border to a location roughly 10 km further into Washington State called the NEXUS Birch Bay Enrollment Center in Blaine, Washington. Instead of parking on the Canadian side of the border and walking to the USCBP office, the grievors now drive through the border to that enrollment centre. While some NEXUS duties continue to be done at the CBSA Pacific Highway Port of Entry office, the grievors report directly to the NEXUS Birch Bay Enrollment Center for work on their variable shift schedule of four days on, four days off.

B. Procedural history

[9] The grievors started filing travel expense claims after this move in January 2015. The employer denied those expense claims. The grievors grieved. The grievors kept filing claims that were denied, and some grievors kept filing new grievances, which is how we ended up with 49 grievances for these 14 grievors.

[10] The employer denied the grievances at the second level of the grievance process on January 3, 2020.

[11] Since all the grievances are about NJC directives, they proceeded to the NJC Executive Committee. On October 20, 2022, the Executive Committee issued its first decision, stating that neither the Travel Directive nor the Relocation Directive applied. The Executive Committee ordered that the grievances be referred to the NJC’s FSD Committee for a recommendation about whether the FSDs applied. The FSD Committee prepared a report for the Executive Committee, which is not in evidence. The Executive Committee considered that report and concluded that the grievors were treated within the intent of the FSDs. It dismissed the grievances. The grievors then referred them to adjudication with the Federal Public Sector Labour Relations and Employment Board (“the Board”, which in this decision also refers to any of its predecessors). The Board assigned a single file number for all 49 grievances.

[12] Since these grievances were filed before 2017, I need to set out the basis of the Board’s jurisdiction to hear them.

[13] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the Public Service Labour Relations and Employment Board and the titles of the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) and the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2) to, respectively, the Federal Public Sector Labour Relations and Employment Board, the Federal Public Sector Labour Relations and Employment Board Act (FPSLREBA), and the Federal Public Sector Labour Relations Act (FPSLRA).

[14] During a case management conference held with a different member of the Board, the parties agreed that this grievance could be decided in writing. The Board is empowered to decide a grievance on the basis of written submissions because of its power to decide “… any matter before it without holding an oral hearing”, in accordance with s. 22 of the FPSLREBA; see also Walcott v. Public Service Alliance of Canada, 2024 FCA 68. In light of the parties’ agreement, I have decided this matter without an oral hearing.

C. Evidence properly before the Board in the grievance

[15] The parties prepared an “Agreed Statement of Facts” for this grievance. However, the parties did not actually agree on all the facts of this case. Instead, after another case management conference, they agreed to divide that statement into three parts: facts that were agreed, facts that were agreed but the employer stated were irrelevant, and facts that the grievors asserted but the employer did not agree were true (and stated were also irrelevant). The parties prepared the evidence in this way so that I could decide whether the facts in the third part of the Agreed Statement of Facts were relevant and meaningful to my decision and, if so, I could conduct a hearing (either orally or in writing) to resolve those facts.

[16] In its responding submissions, the employer also asserted some facts in rebuttal that were not in the Agreed Statement of Facts. I have not considered those facts. I agree with what was said by the Board about a party’s attempt to add to an agreed statement of facts in written argument in Brown v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 50 (where the employer was represented by the same counsel as in this case) at para. 58, as follows:

[58] The grievor has objected to some of the statements in the employer’s submissions that, in his view, add to the agreed statement of facts. I have only considered the facts as set out in the agreed statement of facts and the associated documents provided by the parties. The employer has some opinions on those facts relating to the grievor’s motivations for his actions. When arguing a case based on an agreed statement of facts, each party is entitled to their own opinions — but not their own facts.…

 

[17] In this case, the employer is not just adding the gloss of its opinion to the agreed statement of facts — it is trying to add new facts entirely (in particular, about whether the grievors would benefit from having a NEXUS card to use when crossing the border). I have not considered any facts alleged by either party other than those set out in the Agreed Statement of Facts.

[18] After reading the parties’ submissions, I decided that a further hearing was not necessary to decide these grievances. The disputed facts are all about the impact of the move to the NEXUS Birch Bay Enrollment Center. The grievors point out things such as that they cannot bring food across the border so they need to buy meals at work, their personal cellphone plans do not work in the United States or cost extra money, and their automobile insurance premiums increased by $40 per year. As I explain in this decision, the issue is whether the grievors are eligible to receive benefits under the NJC FSDs or Travel Directive. The precise nature of the additional costs of working in the United States are not material to my decision.

III. Issues

[19] These grievances have the following issues:

1) Are the grievors “foreign assignment employees” as that term is defined in the FSDs? This has two sub-issues:

 

a) Are the grievors serving an “occasional” assignment at the NEXUS Birch Bay Enrollment Center?

 

b) Are the grievors on assignment at a “post”?

 

2) If so, are the grievors entitled to the following:

 

a) Commuting assistance under FSD 30?

 

b) A declaration that they are entitled to health-care expenses under FSD 39?

 

c) Allowances or compensation under Appendix C of the Travel Directive?

 

d) Any other discretionary benefits to compensate them for costs associated with the additional travel to their work location?

 

3) In the alternative, is the claim under the Travel Directive properly before the Board?

 

4) If it is, are the grievors in “travel status”, triggering the benefits available under the Travel Directive?

 

IV. Analytic approach to interpreting NJC directives

A. NJC directives are interpreted using the text, read in context

[20] Both the FSDs and the Travel Directive are incorporated by reference into the collective agreement by clause 7.03(a) of that collective agreement, meaning that they are treated as part of the collective agreement. This means that the FSDs and Travel Directive are interpreted using the same technique as interpreting a collective agreement — namely, the words in the directives “… must be read by considering the entire context of the agreement [directive], reading them in their entire context and in their grammatical and ordinary meaning, harmoniously with the general scheme and object of the agreement and the parties’ intention” (see Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada), 2019 FPSLREB 56 at para. 24).

[21] However, NJC directives are different from other provisions in the collective agreement in how disputes over their meaning are resolved. Clause 18.01 of the collective agreement states that grievances about NJC directives are dealt with in accordance with section 15 of the NJC By-Laws. That grievance process is different in two ways that the parties rely upon in their submissions about the interpretation of NJC directives — one by the grievors, and one by the employer.

B. NJC directives are not interpreted any more purposively than are collective agreements

[22] The grievors rely upon subsection 15.1.2 of the NJC By-Laws, which states, “All grievances … presented under this grievance procedure shall be decided on the basis of the intent of the directive or policy being grieved.” The grievors then submit that the intent of the directives is relevant in two ways: as an interpretive aid, and as a source of substantive rights to address novel situations. I will deal with the second argument later; now, I will address the first.

[23] I begin by acknowledging some cognitive dissonance in suggesting that the interpretation of an NJC directive should be based on the plain meaning of the text when the text of the grievance procedure established in the NJC By-Laws requires a purposive interpretation (i.e. one based on its intent instead of its plain meaning) instead. Despite that concern, I have concluded that the intent of the directives has only limited relevance as an interpretive aid. I have reached that conclusion for the three reasons that follow.

1. The Federal Court of Appeal favours this approach

[24] First, that is the conclusion reached by the Federal Court of Appeal in Nowlan v. Canada (Attorney General), 2022 FCA 83. That case was about the interpretation of the NJC Relocation Directive. The Board in that case applied what it called a “non-technical common sense approach” to that directive — similar to what I characterized earlier as a purposive approach. The Court of Appeal overturned the Board’s decision and was very critical of the purposive approach. The Court of Appeal stated the following:

…

[32] … the Board, properly in my view, recognized at paragraph 51 of the Decision that the same principles that apply to contracts such as collective agreements apply to the text of the Directive. The Directive was incorporated by reference into the collective agreement, and as such, its words are to be given their ordinary meaning. The provisions within the agreement or contract are to be read as a whole, effect must be given to every word, and specific provisions are to take precedence over general
provisions ….

…

[37] Rather than apply the same legal principles and approach it took when interpreting section 1.4.2 of the Directive, the Board applied a common sense approach to its interpretation of section 12.1.2. The Board, relying on what it described as a mistake made by the applicant because she had not requested written approval prior to incurring the relocation expenses, determined that it could ignore the language of section 12.1.2. The terms “shall be deemed” create a deeming provision which requires the employer to reimburse relocation expenses, but this can be defeated if the employer provides written certification. Here, no written certification was provided. In my opinion, the Board’s approach to the interpretation of section 12.1.2 is unreasonable for several reasons.

[38] First, the principles of legal interpretation of the language of section 12.1.2 were ignored and yet applied for section 1.4.2. The Decision lacks logical coherence because the Board is inconsistent in its approach to contractual interpretation.

[39] On the point of contractual interpretation, the Supreme Court has stated that the interpretation of a written contractual provision must always be grounded in the text and read in light of the entire contract. While surrounding circumstances are relied upon in the interpretive process, courts cannot use them to deviate from the text such that the court effectively creates a new agreement (Sattva Capital Corp. v. Creston Moly Corp., 2014 SCC 53, [2014] 2 S.C.R. 633, at para. 57).

[40] Likewise, the leading textbook authors J.M. Brown and D.M. Beatty teach us that the first step in interpreting the collective agreement is for the decision-maker to review its language in its ordinary and normal sense, in the entire context of the agreement. If there is no ambiguity, the decision-maker should give meaning to the explicit language unless the result would be absurd or oppressive.

[41] Only if there is some ambiguity, that is the words are capable of more than one meaning, should the decision-maker assess extrinsic evidence (D.J.M. Brown & D.M. Beatty (Eds.) (2019) Canadian Labour Arbitration, 5th Ed., Thomson Reuters, at para. 4:2100). Similarly, this Court has reiterated, on judicial review of Board decisions, that while labour relations adjudicators are entitled to deference in their areas of expertise, including collective agreement interpretation, their interpretations must nevertheless be ones that the agreement’s text can possibly bear (Public Service Alliance of Canada v. Canada (Attorney General), 2016 FCA 184 at paras. 4-7).

[42] Here, there was no ambiguity. The failure by the Board to give the plain and ordinary meaning to section 12.1.2 of the Directive is, in and of itself, unreasonable. The certification process is mandatory should the employer decide it does not want to pay full relocation expenses. Should the employer decide not to provide written certification, then it will be required to pay “employer-requested” relocation expenses.

…

 

[25] The Court of Appeal perhaps overstates the primacy of the “plain and ordinary meaning” of a collective agreement, and I want to emphasize that collective agreement interpretation is a contextual exercise. The requirement of an ambiguity in the text before an adjudicator may consider extrinsic evidence is also more nuanced than may appear from those passages read in isolation. However, despite those reservations, the thrust of the Court of Appeal’s decision is clear: NJC directives should be interpreted in the same fashion as any other part of a collective agreement, which means focussing on the words in context ahead of a purposive interpretation.

2. The Board favours this approach

[26] Second, this is also how the Board has interpreted NJC directives (except when it was overturned in Nowlan). The Board “… has interpreted other provisions of the NJC’s directives using the same modern principles of contract interpretation …” as the rest of the collective agreement; from Borst v. Treasury Board (Department of Foreign Affairs, Trade and Development), 2023 FPSLREB 83 at para. 61. The Board was even more explicit in Daigneault v. Treasury Board (Correctional Service of Canada), 2017 PSLREB 38 at para. 28, when it stated this:

[28] My task is to apply sections 12.1.2 and 12.1.5 of the Directive, which is incorporated by reference in the collective agreement. If the wording is clear, there is no need for interpretation and no need to revert to its purpose and objective clauses. While the parties might have approached the matter differently in their deliberations at the NJC Executive Committee level, as reflected in section 15.1.2 of the By-Laws cited by the grievor, I am constrained as a quasi-judicial decision maker to follow generally accepted rules of the legal interpretation of collective agreements.

 

[27] The closest that the Board has come (without being overturned) to adopting a purposive approach to NJC directives is in Dubois v. Treasury Board (Canadian International Development Agency), 2004 PSSRB 91, upheld in 2005 FC 760, in which it stated that it must assess whether the impugned decisions were “… based on the correct application of the intent of those directives.” However, the Board was focused on “application” not “intent”. The employer argued in that case that the Board should only consider whether the employer properly executed Health Canada’s decision about whether a particular illness was endemic to Canada; instead, the Board found that it had to consider whether the directive applied to the grievor, not just whether the employer implemented Health Canada’s assessment. Therefore, the Board wanted to be clear that the employer had to correctly apply the directive, not just execute Health Canada’s decision. This decision does not grapple with whether the Board must focus on the intent of a directive instead of its express terms, and therefore, it is not a precedent for that proposition.

3. The requirement to follow intent is for the NJC Executive Committee, not the Board

[28] Third, the NJC By-Laws state that grievances “… presented under this grievance procedure shall be decided on the basis of the intent of the directive or policy being grieved” [emphasis added]. The grievance procedure in the NJC By-Laws has three levels, culminating in a decision by the NJC Executive Committee, which decides the case by itself or after receiving a recommendation by the working committee for the particular directive being grieved. Adjudication comes after that grievance procedure. This is the point made in Daigneault: The Executive Committee must base its decision on the intent of the directive, but the NJC By-Laws do not require the Board to do so.

[29] For these reasons, I have concluded that the same interpretive principles apply to this grievance as with other collective agreement grievances. The FSDs and the Travel Directive must be interpreted based on their wording, which is read in their entire context and harmoniously with the scheme of each directive, its object, and the parties’ intention (see Borst, at para. 60). Intention is an interpretive aid only in the same sense as it would be an interpretative aid for any other collective agreement provision — which is to say, to come to the rescue when the text and context cannot do the work on their own.

C. The Board does not defer to the NJC Executive Committee’s decision

[30] The employer makes a different argument based on the structure of the NJC grievance process. As stated earlier, NJC grievances are decided by the NJC Executive Committee, often acting on the advice of the working group responsible for that particular directive. The NJC was established by the Governor in Council on the recommendation of the President of the Treasury Board under Treasury Board Minute T.272382B of March 8, 1945, as amended by these Orders in Council: P.C. 1966-37/2106 of November 10, 1966; P.C. 1980-2413 of September 5, 1980; P.C. 1981-2443 of September 3, 1981; P.C. 1987-884 of April 30, 1987; and P.C. 1994-2/752 of May 5, 1994. It is a joint council, meaning that it is composed of representatives of 19 bargaining agents and 5 employers in the federal public service. It has 2 co-chairs, 1 appointed by the president of Treasury Board, and 1 by the bargaining agents. Its Executive Committee is composed of the 2 chairpersons and 2 additional representatives from each side.

[31] The employer argues that the Board should defer to unanimous decisions of the Executive Committee because those decisions are “bipartisan” and based on “… the NJC’s unique membership composition, specialized knowledge, and role in federal public sector labour relations.”

[32] I disagree, for four reasons.

1. The Board has already rejected the argument that it should defer to the NJC Executive Committee

[33] First, the Board has previously rejected that or similar submissions. In Labossiere v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 144 at para. 18, the Board was critical of parties that focussed on the NJC Executive Committee’s decision instead of the merits of a grievance, stating, “The Board’s mandate is to adjudicate grievances referred to adjudication, not sit in judicial review of decisions of the NJC.”

[34] The employer also made the same argument in favour of deference to the NJC Executive Committee’s decision in Dubois, at para. 48. While the Board did not address that submission directly, it did state that it “… must decide whether that decision [the one being grieved] was made in a manner consistent with the stipulations and intent of FSD 47” — not that it must decide to review the Executive Committee’s decision and show it deference.

2. Deference to the NJC Executive Committee is inconsistent with the Board’s role in deciding grievances

[35] Second, the submission is inconsistent with the broader principles of the Board’s role in the grievance process. The Board does not sit in review of a grievance decision. Instead, the Board proceeds to hear a grievance de novo (from the beginning); see Canada (Attorney General) v. Rushwan, 2023 FCA 118 at para. 21 and Klouvi c. Canada (Procureur général), 2024 CAF 80 at paras. 3 and 4. The employer’s submission is inconsistent with the Board’s duty to conduct a de novo hearing of every grievance (whether or not involving an NJC directive) and not defer to the decision maker at the final level of the grievance process.

3. The FPSLRA does not require deference to the NJC Executive Committee

[36] Third, the employer’s submission is inconsistent with how deference between decision makers operates in the administrative context. The employer is relying on the relative expertise and bipartite composition of the NJC Executive Committee when arguing that the Board should defer to that committee’s decisions. Those are pragmatic and functional considerations that, at one time, helped inform whether courts would defer to administrative tribunals on judicial review. However, at the risk of repeating myself and stating the obvious, the Board is not a court reviewing the NJC Executive Committee’s decision. It is an administrative tribunal. The role of an administrative body when dealing with the decision by another administrative decision maker “… is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context” (from Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93 at para. 46; see also Smith v. Canada (Attorney General), 2021 FCA 73). If deference is owed to the NJC Executive Committee, the basis of this deference must be found in the FPSLRA.

[37] The FPSLRA does not contemplate such deference. Subsection 228(2) states that the adjudicator or the Board seized with a grievance must “… make the order that the adjudicator or the Board consider appropriate in the circumstances …”. There is no hint of deference there. The only provision of the FPSLRA calling for deference on the part of the Board is s. 230, which provides that the Board must assess the reasonableness (instead of correctness) of an employer’s opinion about the performance of an employee. Parliament limited the cases in which the Board shows deference to that category. Finally, s. 214 of the FPSLRA is the privative clause for grievance decisions, providing that grievance decisions are “final and binding”. Section 214 states specifically that it does not apply to a grievance that may be referred to adjudication; this is another indication of Parliament’s intention that there be no deference shown by the Board in the grievance process.

[38] Parliament’s intention, as expressed in the FPSLRA, is that the Board not defer to grievance decisions — outside the narrow circumstances set out in s. 230 about an opinion about performance.

[39] The employer’s submission is also inconsistent with when deference is owed more generally. Deference in judicial review used to be determined based on a pragmatic and functional approach, one element of which was the relative expertise of the decision maker; see Dunsmuir v. New Brunswick, 2008 SCC 9 at paras. 49 and 55. However, in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the Supreme Court of Canada did away with basing deference upon relative expertise, stating at paragraph 46 that “… the presumption of reasonableness review is no longer premised upon notions of relative expertise. Instead, it is now based on respect for the legislature’s institutional design choice …”. In other words, even if the NJC Executive Committee had greater relative expertise in the interpretation of the FSDs or Travel Directive than the Board (which is not a proposition I necessarily endorse), that is no longer a relevant consideration when deciding whether its decisions are owed deference.

[40] Whether in administrative review or judicial review, the pole star of deference is legislative design choice. As I explained earlier, Parliament has provided a regime in the FPSLRA that requires the Board to defer to a grievance decision in only one circumstance. It would be inconsistent with that legislative design choice for the Board to show deference to the NJC Executive Committee when hearing grievances about NJC directives.

V. Analysis of issue #1: the grievors are “foreign assignment employees”

[41] Subsection 3.1.1 of FSD 3 states that (with an exception that the parties acknowledge is not relevant to this grievance) the FSDs apply to “… career foreign service employees and to foreign assignment employees on assignment outside Canada …”. The grievors admit that they are not “career foreign service employees” but argue that they are “… foreign assignment employees on assignment outside Canada …”. That is a defined term; the definition uses terms that are themselves defined in the FSDs. The relevant definitions are as follows:

…

Career foreign service employee (fonctionnaire qui fait carrière dans le service extérieur) means an employee who, as a condition of employment, served abroad pursuant to a rotational pattern throughout the span of their career. This rotational service normally involves assignments to a number of posts but occasionally, due to operational requirements, assignments may be limited to one or a few posts.

…

Foreign assignment employee (fonctionnaire affecté à l’étranger) means an employee who has made no commitment to serve abroad throughout the span of their career pursuant to a rotational pattern, but who serves an occasional assignment at a post.

…

Post (poste) means a city, community, or other geographic locality in which a “mission” is situated.

…

Mission (mission) means an office of a department outside Canada.

…

Assignment (affectation) means an assignment as defined in FSD 3 – Application.

…

FSD 3 - Application

…

3.1.1 Unless otherwise indicated, and subject to the provisions of FSD 8 - Short-Term Assignments Outside Canada, these directives apply to career foreign service employees and to foreign assignment employees on assignment outside Canada, where:

(a) an assignment is normally for a period of 12 months or more;

(b) an assignment means an assignment to an office of the Government of Canada at a post or … [another provision of no relevance to this case]

…

[Emphasis added]

 

[42] As can be seen from these definitions, to be a foreign assignment employee, a person must be the following:

1) an employee;

2) not someone who has agreed to rotate abroad for their career;

3) serving an occasional assignment; and

4) the assignment is at a post.

 

[43] There is no dispute that the grievors meet the first two elements: they are employees and not rotational. In addition, there is no dispute that the grievors are “assigned” or “on assignment” at the NEXUS Birch Bay Enrollment Center. This is evident from letters that each of the grievors received stating, “Your initial assignment will be at the NEXUS Enrollment Centre [sic] in Blaine, Washington.”

[44] The employer submits that the grievors are not serving an occasional assignment and are not serving their assignment at a post.

A. The grievors are serving an occasional assignment

[45] The employer’s submission about the occasional assignment requirement is very brief: “The Grievors cannot be ‘serving an occasional assignment’ when they are substantive employees of the CBSA Pacific Highway District, regularly reporting to their permanent work location, just 10 kilometers across the U.S border” [emphasis in the original].

[46] Contrary to the employer’s submissions, the fact that an assignment is regular or lengthy does not mean that it cannot also be “occasional”. This is evident from subsection 3.1.1 of FSD 3. It states that that FSD applies to “… foreign assignment employees on assignment outside Canada …” when “… an assignment is normally for a period of 12 months or more …”. By definition, a foreign assignment is longer than 12 months.

[47] The employer’s statement that the NEXUS Birch Bay Enrollment Center is a permanent work location (instead of an occasional one) is belied by the letter that each grievor received assigning them to that office, which states:

Based on operational needs, you may be required to provide Border Services Officer services at any of the Pacific Highway District Canada Border Services Agency locations. Your initial assignment will be at the Nexus Enrollment Centre [sic] in Blaine, Washington.

 

[48] The employer told the grievors that this was an “initial” assignment and that they could be moved between locations in the Pacific Highway District.

[49] A plain and ordinary interpretation of “occasional” means irregular or periodic. However, that is not how the term is used in the FSDs — otherwise, it would not have described an assignment applicable to a foreign assignment employee to mean one that is usually of more than 12 months’ duration. In the context of the FSDs, the word “occasional” means something different than irregular or periodic. It is used as an antonym of “rotational”, to distinguish between career foreign service employees who rotate abroad throughout their careers. If the foreign assignments are repeated in a rotational pattern throughout the span of their career, the employee is a career foreign service employee; if it is a single assignment (like in this case) or repeated assignments without a rotational pattern, it is “occasional”.

[50] Therefore, I have concluded that this is an “occasional” assignment.

B. The grievors are serving at a post

[51] As set out earlier, the term “post” is defined to mean a “… city, community, or other geographic locality in which a ‘mission’ is situated.” The employer does not argue that the NEXUS Birch Bay Enrollment Center is not a “mission”.

[52] The employer’s argument is that the term “post” means a city, community, or other geographic locality in which a mission is situated and where the employee resides.

[53] The employer makes a textual argument, submitting that the use of the term “post” rather than “mission” means that the terms are not interchangeable. This argument is inconsistent with the fact that both “post” and “mission” are defined terms and that the definition of “post” refers to a “mission”. The two terms are perfectly clear in their definitions: a mission is an office, and a post is the city (or other geographic location) of that office. For example, Canada has a permanent mission to the United Nations and a consulate general in New York City. So, Canada has two “missions” in one “post”. I have reviewed the FSDs in their entirety, and they are careful to use the term “mission” when referring to the office and “post” when referring to its location. For example, the term “senior officer” is defined to mean the senior officer at each “mission”. Going back to my New York example, each mission has a senior officer, but the senior officers work at the same post (i.e., the city of New York). The FSDs use “mission” and “post” to refer to offices and locations, respectively.

[54] In short, I agree that the terms are not interchangeable. However, that does not assist the employer. In this case, the “mission” is the NEXUS Birch Bay Enrollment Center and the “post” is Blaine, Washington. The grievors are still serving at a “post” — in this case, Blaine, Washington. Their interpretation of the FSDs does not violate the rule against redundancy.

[55] The employer also makes a contextual argument. The employer argues that the context in which the term “post” is used throughout the FSDs means that an employee must reside in the same location as their mission. The employer cites 10 examples that it says support its position.

[56] I have reviewed those examples carefully, and they do not assist the employer.

[57] Two examples in particular are easy to dispense with. First, the employer argues that “… ‘post’ refers to a city or geographic place outside Canada where a ‘mission’ is situated. The use of this term throughout the FSDs signifies that the directives primarily concern employees serving and posted at international locations.” The employer’s argument is circular: it argues that a post means residence because the directives are primarily about employees posted abroad. This is simply unhelpful reasoning.

[58] Second, the employer submits, “‘Living expenses’ are defined as the costs incurred while residing at a foreign post. This is further proof that the FSDs aim to support employees living abroad.” The term “living expenses” is not defined as the costs incurred while residing at a foreign post. The term is defined to mean “… actual and reasonable expenses for accommodation, meals, laundry, drycleaning and valet services and attendant gratuities.” It says nothing about these costs being incurred while residing abroad. On the contrary, there are some living expenses that are paid while living in Canada, such as section 15.33 of FSD 15 (living expenses on relocation to a place of duty in Canada).

[59] The employer is correct in submitting that many, if not most, of the provisions of the FSDs provide benefits for employees who are residing and working abroad. I agree with the employer when it submits that the FSDs’ “… benefits are aimed at employees stationed and living at a foreign ‘post’.”

[60] However, the term “post” is a defined term. It is well established that an adjudicator cannot add words to a collective agreement (see, for example, Unifor Local 4050 v. Pincher Creek Co-operative, 2021 CanLII 12992 (AB GAA)); this rule is codified in s. 229 of the FPSLRA, which prohibits an adjudicator from making a decision that has the effect of requiring an amendment to a collective agreement. The employer’s submission asks me to do just that by adding to the definition of “post” another requirement that a post be the place where the employee resides. The employer’s definition may be a logical meaning of the term “post”, but it is not the one chosen by the parties to the FSDs.

[61] In conclusion, the grievors are foreign assignment employees. They are employees, they are not rotational, they are serving an occasional assignment, and their assignment is at a post.

VI. Analysis of issue #2: the grievors are not entitled to any of the specific benefits of the FSDs

[62] The grievors argue that they are entitled to three benefits under the FSDs: commuting assistance under FSD 30, health-care expenses under FSD 39, and the lunch portion of a meal allowance. They also argue that they are entitled to other discretionary benefits, to compensate them for the additional costs of travelling 10 km into the United States. I have concluded that even though the FSDs apply to them, they are not entitled to any of those benefits.

A. The grievors are not entitled to commuting assistance

[63] Commuting assistance is found within FSD 30 - “Post Transportation and Related Expenses”. Section 30.4 of that FSD sets out the general provisions for commuting assistance; sections 30.5 and 30.6 then set out the rules for commuting assistance for employer-selected accommodation and employee-selected accommodation.

[64] Subsection 30.4.1 begins by setting out these preconditions for commuting assistance:

30.4.1 In determining whether commuting assistance is warranted, it should be borne in mind that the basic government policy on commuting is that, under normal circumstances, employees are expected to report for work at their own expense. Assistance is available where excess commuting costs result from an employee’s allocation to Crown-held accommodation or to privately leased accommodation in a location approved by management, in accordance with the definitions outlined in this directive and Sections 30.4 to 30.7, inclusive.

 

[65] One precondition for commuting assistance is that the employee live in Crown-held accommodation or in private accommodation “in a location approved by management”. The grievors agree that they do not live in Crown-held accommodations.

[66] The grievors argue that they live in a location approved by management because “… nothing in FSD 30 requires the approval to be express, so the Employer’s silence on the Grievors’ accommodation is implied approval.” The grievors cite no authority for this unusual proposition that the fact that management does not comment on where an employee lives means that it has “approved” their home residence. I cannot accept that management’s silence indicates its “approval”. There are other provisions in the FSDs about accommodation that require approval, including purchasing accommodation at a post (FSD 25, subsection 25.8.1) and certain costs of sharing accommodation with a non-employee (FSD 25, subsection 25.13.4). The idea that an employee could, for example, buy private accommodation at a post instead of renting and then claim the benefits of the FSD on the grounds that the employer never said not to is, frankly, absurd. When the FSD says that a particular action requires approval, that approval cannot be implied by mere silence.

[67] The grievors admit that “… their circumstances do not fall neatly into the FSD 30 definitions …”. That is correct and is sufficient to explain why they are not entitled to its benefits.

[68] Finally, the grievors make a claim to commuting assistance based on the introduction to FSD 30. The introduction to FSD 30 states that its purpose is to address “… expenses associated with personal transportation which are significantly different to situations normally experienced by employees serving in Canada.” The grievors argue that “[f]ew would dispute that the transportation and expenses associated with the Grievors’ daily international commute are significantly different to situations normally experienced in Canada.” I respectfully disagree.

[69] The grievors state that they cannot bring certain types of food with them to work because of the border crossing, yet many workplaces prohibit certain types of food because of severe allergies of other employees. The grievors state that their vehicle insurance is higher, yet many employees have higher vehicle insurance because of the nature of their commute — for example, if the employee lives or works in a rural area and drives a larger vehicle that requires higher insurance. The grievors state that crossing the border increases their commute time, yet many employees who move offices end up with longer commute times as a result. The grievors are concerned about the cost of NEXUS cards to minimize the time spent crossing the border (at the sum of $50 every five years), yet many employees pay to use toll roads or bridges to shorten their commute times. The grievors are concerned about increased cellphone costs because they work in the United States, yet cellphone costs vary across provinces and sometimes even within a province, and employees in rural areas may drive through zones that lose cell coverage. The grievors also state that they cannot reach loved ones during working hours without explaining why they cannot use Wi-Fi at work or how this is different from other employees who are not permitted to use personal cellphones at work because they work in secure locations. Even without all this, there are thousands of employees who commute across the Canada-US border every day.

[70] For the reasons I have just set out, grievors’ circumstances are not significantly different from those faced by a large number of other Canadians.

[71] Further, the introduction to FSD 30 goes on to state that it exists because “Local restrictions may limit the availability of private motor vehicles or impose significant extra costs on employees.” The grievors’ concerns are not the result of local restrictions, with the possible exception of the restriction on importing food which is insufficient, by itself, to bring the grievors within FSD 30’s purpose.

[72] As I have already stated, the grievors’ circumstances fall outside the scope of the benefits in FSD 30. That is sufficient for me to deny that aspect of the grievance. I merely point out that, even if the grievors were correct in submitting that a moral claim based on unique circumstances entitles them to a benefit despite the wording of FSD 30, they have not made out that claim in this grievance.

B. The grievors are not entitled to health-care expenses

[73] The grievors state baldly that “[t]here is no doubt” that FSD 39 applies to them. However, they are asking only for a declaration of entitlement under FSD 39 because they “… have not incurred health care expenses related to their work …”. Employees have been working at the NEXUS Birch Bay Enrollment Center for almost a decade.

[74] FSD 39 was amended effective on April 1, 2019. The version of the FSD in place when the grievances were filed (effective April 1, 2013) set out that it applied as follows:

This directive provides financial assistance to employees who incur health care expenses outside Canada which exceed those permissible under the Public Service Health Care Plan (PSHCP) and the Public Service Dental Care Plan (PSDCP) ….

 

[75] The current version of FSD 39 reads as follows:

This directive provides financial assistance to employees who incur health care expenses outside Canada which exceed those permissible under the Comprehensive Coverage of the Public Service Health Care Plan (PSHCP) and the Public Service Dental Care Plan (PSDCP) ….

[Emphasis added]

 

[76] In light of the grievors’ admission that they have not incurred health care expenses, there is no purpose behind assessing their entitlement to benefits under the pre-2019 version of the FSD. Even if the grievors were eligible under the old version of FSD 39, I would not issue a declaration to that effect in the face of 10 years’ experience showing that they do not need these benefits. The grievors never explained the purpose served by a declaration, aside from a claim that this would relieve them of having to take out their own health insurance – without providing any evidence that the grievors have paid for any additional health insurance.

[77] In its submissions about the current version of the FSD, the employer relies on the term “comprehensive coverage.” The NJC Public Service Health Care Plan Directive (“PSHCPD”) (both the version in force in 2013, and the current one) explains that there are two types of health-care coverage: supplementary and comprehensive. In short, supplementary coverage is for employees living in Canada to supplement their provincial health care, and comprehensive coverage is for employees who live outside Canada (and therefore do not have provincial health care). Paragraph 8.1.1 of the current PSHCPD states specifically that comprehensive coverage is “… available only to members who reside outside Canada …”; the old PSHCPD said the same thing. While the PSHCPD does not discuss the terms of the dental plan, the grievors do not dispute that the meanings of “supplementary” and “comprehensive” apply to that plan as well.

[78] The grievors are not eligible for comprehensive coverage under the PSHCP or PSDCP because they reside in Canada. This means that the current version of the FSD 39 does not apply to them. Therefore, I will not grant a declaration in favour of the grievors.

C. The Travel Directive is not part of the FSDs

[79] The grievors seek several allowances under the Travel Directive. The grievors assert that the Travel Directive is incorporated into the FSD 8 through subsection 8.6.1 because that provision refers to a meal allowance in accordance with the Travel Directive. FSD 8 is about “short-term assignments”, which are defined as assignments greater than 120 days but less than 12 months in duration. The grievors have all been assigned to the NEXUS Birch Bay Enrollment Center for more than 1 year at a time, so subsection 8.6.1 does not apply to them.

[80] The grievors also ask for incidental expenses under the Travel Directive, arguing that this would compensate them for the financial disadvantage of having to commute across the Canada-US border. There is nothing in the FSD that would require or even contemplate the employer having to pay an allowance under a different directive just because employees have costs associated with a commute.

[81] For these reasons, I have concluded that the grievors are not entitled to any of the benefits expressly stipulated in the FSDs.

D. Discretionary payments

[82] The grievors ask to be indemnified for additional costs of their commute into the United States. These include, but are not limited to, the additional cost of vehicle insurance. The grievors have identified nothing in the FSDs that would require or even contemplate the employer paying this amount, aside from commuter assistance, which I have already rejected.

[83] This takes me to the grievors’ argument that the intent of the FSDs is a source of substantive rights to address novel situations. As I stated earlier, the NJC By-Laws state that grievances should be decided in accordance with the intent of the directive at issue. The grievors rely in particular on the statement of principles at the outset of the FSDs, which reads as follows:

Principles

The Foreign Service Directives reflect the following principles:

Comparability - insofar as is possible and practicable employees serving abroad should be placed in neither a more nor a less favourable situation than they would be in serving in Canada.

Incentive-inducement - the employer must provide certain additional incentives both to attract employees to serve an occasional assignment outside Canada and to recruit and retain employees in a career [in] foreign service.

Program-related provisions - to ensure that employees abroad will be provided with the means to carry out the programs assigned to them.

To achieve the objectives of the Directives, consideration will continue to be given to situations which may arise which are not specifically dealt with in the Directives but which fall within the intent of the Directives as described in the basic principles outlined above or explained in the Introduction to a specific directive.

[Emphasis in the original]

 

[84] The grievors’ argument is best encapsulated in their reply submissions as follows:

…

5. The Grievors’ cross-border commute is an extraordinary work arrangement necessitated by their assignment to the BBEC. This arrangement imposes unique financial and logistical burdens that would not arise for employees assigned to domestic posts. Denying the Grievors the benefits of the FSDs is directly contrary to the comparability principle.

…

 

[85] I cannot agree with the grievors, for two reasons.

1. The Board’s earlier decisions do not assist the grievors

[86] The Board recently rejected this same argument in Woodill v. Treasury Board (Department of National Defence), 2023 FPSLREB 90. The grievor in that case was relocated from Kingston, Ontario, to Washington, D.C. He sold his home in Gananoque, Ontario, which he had purchased recently, and he lost money on the sale. He was covered by the FSDs because he relocated to the United States. Had he relocated within Canada, he would have been covered by the Relocation Directive. The Relocation Directive has a benefit called “Home Equity Assistance” that, at the risk of oversimplification, pays a portion of the difference between the original purchase price and the sale price of a home when the value of their home has decreased and they are relocated. The grievor argued that the comparability principle of the FSDs meant that he was entitled to that benefit.

[87] The Board disagreed, for two reasons. First, the Board pointed out that home-equity loss is not covered by any FSD, as opposed to the clear language in the Relocation Directive. To the Board, this showed that the parties deliberately chose to provide home-equity loss for domestic relocations but not international ones. The grievors argue that this distinguishes their case from Woodill because, unlike home-equity loss, the meal and kilometric rates from the Travel Directive are incorporated into the FSDs. However, as I stated earlier, that is incorrect — the meal allowance is incorporated into the FSDs only for certain limited purposes and not more broadly. The kilometric rates are also used only for certain limited purposes (such as relocation and house hunting trips).

[88] More importantly, the Board in Woodill rejected the premise behind the grievors’ case in these grievances. The Board stated simply at paragraphs 60 and 61 that “… comparability does not allow an adjudicator to modify collective agreement language …” and that “… a significant loss is not necessarily covered by an FSD, even on the principle of comparability. The coverage conditions must also be found in the FSD’s language.”

[89] I agree. The FSD does not include a freestanding right to “comparability” of treatment.

[90] The grievors rely heavily on the Board’s decision in Jonk v. Treasury Board (Foreign Affairs and International Trade), [1998] C.P.S.S.R.B No. 54 (QL). The grievor in that case lived in Los Angeles, California, during a 1994 earthquake. The earthquake hit his residence, damaging his personal effects and requiring him to vacate the premises for five days, due to a loss of utilities. He had earthquake insurance in the amount of $50 000, but with a 10% ($5000) deductible. He collected money from his insurance company and claimed the $5000 deductible from his employer. The employer offered to pay half of it. The employer paid a similar amount to another employee, who purchased insurance with a 5% instead of a 10% deductible. The employer said simply that it drew a “discretionary line at 5% for reimbursement”. The Board allowed the grievance.

[91] The Board pointed out that FSD 64 (which covers emergency evacuations) did not apply but nevertheless stated that this was one of those situations covered by the introductory words to the FSD “… not specifically dealt with in the Directives …”. The Board ordered the employer to pay the full 10% deductible. The grievors argue that this case supports their argument that the employer is required to reimburse their expenses or pay them the travel allowances because, like in Jonk, their situation is not dealt with in the FSDs.

[92] The Board has never cited Jonk for the broad principle that the grievors rely upon it for — that the mere fact that a situation or expense is not dealt with in the FSDs for an employee who works abroad is sufficient to trigger an entitlement. I would hesitate before accepting such a principle.

[93] Jonk is also distinguishable from this case. The important distinguishing feature is that in Jonk, the employer concluded that it should exercise its discretion and reimburse the deductible. The Board did not conclude that the grievor was entitled to the deductible in a vacuum; the Board concluded that having decided to pay for a deductible, the employer had no reason to draw the line at 5%. As the Board stated at paragraph 31:

31 … the employer exercised its discretion pursuant to FSD 15.42(a) and drew a line at 5% for reimbursement. Why not 4.9% or 5.1%? I believe the employer’s discretion was exercised in an arbitrary fashion that unjustly discriminated against Mr. Jonk and that his claim was justified and within reason.

 

[94] In this case, if the grievors could point to other situations in which the employer had exercised its discretion to pay the type of benefits that the grievors are asking for, I would have considered whether the employer violated the FSDs by exercising its discretion in a discriminatory or an arbitrary fashion. However, the grievors could not point out any situations that I could compare theirs to. The grievors could not point to any situation in which an employee lived in Canada, worked abroad, and received any benefits under the FSDs.

2. The grievors’ claim is inconsistent with the intent of the FSDs

[95] Finally, while I have explained why the grievors are, technically, foreign assignment employees, I also agree with the employer that the purpose or intent of the FSDs is to reimburse expenses incurred by employees who reside and work abroad. I outlined earlier why the grievors meet the definition of “foreign assignment employee”, despite the employer’s argument based on the context of the FSDs. However, that context provided by the employer is important because it shows that the intent of the FSDs is to provide benefits to employees living abroad. The employer gave a number of examples of this. The most acute example is in the FSDs’ treatment of employee-couples. When employee-couples are assigned to different posts, they each receive benefits under the FSDs, but when they are assigned to the same post, one of them is treated as the employee and the other as a dependant (see, for example, FSD 15, section 15.2, and FSD 16, section 16.5). FSD 18, dealing with special family separation assistance, goes further and is designed for when a spouse or common law partner does not accompany an employee for “the employee’s posting” — showing that a “posting” is almost always going to be a residence abroad as well as a work location.

[96] I have not gone through the entire FSDs to figure out whether any of its provisions could apply to an employee living in Canada and commuting abroad. The grievors tried to point to two such provisions (commuting and health care), but as I have concluded, they do not apply. The grievor pointed to FSD 8.6.1 about short-term assignments, but as I have said earlier they are not on short-term assignments. Employees who live in Canada may still be foreign assignment employees; based on their circumstances, there may be a small number of FSD benefits that apply to them — or at least, I cannot rule it out. However, even if the FSDs permitted me to order the employer to exercise its discretion to pay benefits to a group of employees just because their situation was unusual, I would not do so in this case, because the intent of the FSDs is comparability between the cost of living in Canada and abroad.

[97] For these reasons, I have dismissed the grievors’ claim to benefits under the FSDs. They are foreign assignment employees under the FSDs; however, none of the benefits they claim apply to them. Additionally, they are not captured by the intention behind the directives of ensuring the comparability of living standards between employees living abroad and those in Canada.

VII. The Travel Directive

[98] The grievors argue in the alternative that they are entitled to several allowances and other payments under the Travel Directive.

A. The Travel Directive grievance is properly before the Board

[99] The employer argues that the Travel Directive part of this grievance is not properly before the Board. As explained in the procedural overview, when this grievance was referred to the NJC Executive Committee, it was dealt with in two stages. First, the NJC Executive Committee decided on October 20, 2022, that “… the Travel Directive does not apply as the grievors were reporting to their permanent
workplace …”. The Executive Committee also decided to refer the grievance to the FSD Committee. The Executive Committee concluded as follows:

In light of the Executive Committee’s decision, the Travel Directive grievance is now concluded. The grievances and information already submitted will be treated as an FSD grievance file and the grievance process will continue without interruption.

 

[100] The NJC Executive Committee made its second decision, dismissing the FSD claim, on April 6, 2023. The grievors referred their grievance to adjudication on April 17, 2023.

[101] Subsection 90(1) of the Federal Public Sector Labour Relations Regulations (SOR/2005-79) requires a grievor to refer a grievance to adjudication within 40 days “… after the day on which the person who presented the grievance received a decision at the final level of the applicable grievance process” or within 40 days of the employer’s deadline to make a decision at the final level. The grievors referred their grievances to adjudication within 40 days of the second decision but not the first decision. The employer argues that this means that the grievance, as it pertains to the Travel Directive, was filed late.

[102] I have concluded that the reference to adjudication was timely. Subsection 209(1) of the FPSLRA allows an employee to refer “an individual grievance” to adjudication. It is the grievance that is referred to adjudication, not the final-level decision.

[103] There were 49 individual grievances in this case (which were consolidated into this single Board file). Each grievance was about both the FSDs and the Travel Directive. The deadline to refer the grievance to adjudication began to run when the grievance was decided — not when just part of it was decided. The grievance was not decided until April 6, 2023.

[104] Section 225 of the FPSLRA stipulates that no grievance may be referred to adjudication until it has been presented at all required levels in accordance with the grievance process. This is a codification of a more general legal principle that a party must exhaust internal remedies before applying elsewhere for redress. In judicial review, this legal principle operates as a discretionary bar to court applications, making such applications premature until all internal administrative remedies have been exhausted. This includes applications challenging interim decisions of an administrative tribunal; a party needs to wait for the final result before challenging an interim ruling. When internal remedies have not yet been exhausted, the time limit for judicial review begins to run only when a decision has been made in that internal process — as it “… would be absurd to interpret [a time limit] as encompassing a period of time during which the parties were bound to pursue another dispute resolution process” (from Lee v. Yeung, 2012 ABQB 40 at para. 47). Similarly, when a decision is released in parts, the deadline begins to run only after the final decision is released; see Tsetta v. Band Council of the Yellowknives Dene First Nation, 2014 FC 396 at para. 20.

[105] The same principle applies in this case. The NJC Executive Committee decided the grievance in two parts: first applying the Travel Directive, and then applying the FSDs. Until it decided both parts, the grievance had not been dealt with at the final level of the grievance process. Once it was, the grievors were free to refer both parts of it to adjudication.

[106] For these reasons, the Travel Directive issue was not untimely and is properly before the Board.

B. The grievors are not eligible for benefits under the Travel Directive

[107] The grievors’ argument about the Travel Directive is as follows:

…

58. If the Grievors are not considered to be on assignment at BBEC [Birch Bay Enrollment Center], then surely they must be authorized to travel there for work because it is where the Employer expects them to perform their duties. This would leave the Pacific Highway Port of Entry (“PHPOE”) as their official headquarters, or the outer limit of their official headquarters, as the deployment letters reference the Pacific Highway District Canada Border Services Agency locations.

…

[Emphasis added]

 

[108] I have already stated that the grievors are on assignment at the Birch Bay Enrollment Center. Therefore, on the grievors’ own argument, they are not entitled to any benefits under the Travel Directive.

[109] To explain further and remove any doubt, the Travel Directive provides benefits for employees who are on travel, sometimes called being on “travel status”. The Travel Directive has four “travel modules”: travel within the headquarters area (defined as within 16 km of an employee’s regular workplace), travel outside the headquarters area with no overnight stay, travel in Canada or the continental United States with an overnight stay, and international travel outside Canada or the continental United States. Only modules 1 (travel within headquarters area) or 2 (travel outside headquarters with no overnight stay) could apply to the grievors. Both require that the employee travel “away from the workplace”. The employee’s “workplace” is defined as “… the single permanent location determined by the employer at or from which an employee ordinarily performs the work of his or her position or reports to.”

[110] The grievors ordinarily work at the Birch Bay Enrollment Center. They agree that this is where they ordinarily work, and I have quoted earlier the letters assigning them to this workplace. Therefore, they are not on travel status when they leave their homes to drive to work or return home; they are commuting. Therefore, they are not entitled to any of the benefits under the Travel Directive.

[111] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VIII. Order

[112] The grievances are denied.

February 19, 2025.

Christopher Rootham,

a panel of the Federal Public Sector

Labour Relations and Employment Board

 

 

APPENDIX A

 

LIST OF GRIEVORS

 

Bridget Belliveau

Lisa Borland

Dale Collins

Patricia Freer

Jose Garcia

Cliff Gilbert

Barbara Guenther

Cheryl Hillis

Robert Humphreys

Rita Irion

Marie-Claude Langlois

Cherylee Ruzyski

Marian Senum

Sandra Witherdeen