January 31, 2024
27.4.137
Background
The grievors work for Department A and live in City G, Province M and City H, Province N. City G and City H are designated as isolated posts (IPs) under the Isolated Post and Government Housing Directive (the Directive). The grievors who resided in City G were advised on November 24, 2011, that a boil-water advisory had been issued for their residences, and consequently advised not to drink the water. Ongoing boil-water advisories were issued at various times since 2011 and lifted on January 11, 2019. The grievors in City H were advised that a boil-water advisory had been issued at a prior date for their residence and was in place continuously until January 2019. While the boil-water advisories were in effect, bottled water was provided to the grievors by the Department for the purposes of drinking and preparing food. On November 30, 2015, the grievors submitted a group grievance, seeking a special shelter charge reduction under section 6.8 of the Directive for the extended disruption of normal water service.
Grievance
The employees are grieving that the Isolated Posts and Government Housing (IPGH) Directive has been violated due to a disruption in normal water service for more than 30 days, and are requesting the Employer reduce the shelter charge in consequence.
Bargaining Agent Presentation
The Bargaining Agent representative is of the opinion that the grievors were not treated within the intent of the Directive. The representative noted that the Directive specifically contemplates a reduction in rental charges when the water supply is non-potable; however, the Department’s response has been to assert that water is being supplied, potable or not, and therefore no reduction in shelter charges is justified. The representative maintained that it is within the scope and the intent of the Directive to reduce the shelter charge where an employee is compelled to live with a serious maintenance problem and argued that the provision of non-potable water falls squarely within serious maintenance problems and furthermore, health and safety concerns.
The representative argued that the Department did not fulfill its responsibilities as per subsection 6.8.2 of the Directive, regarding the correction of maintenance problems at an employee’s accommodation. They noted that the onus is on the Department to demonstrate that they have made every effort to correct problems as soon as possible. The representative argued that the continued provision of non-potable water for a period exceeding seven years does not meet this threshold; rather, it suggests that little to no effort to correct the problem was made at all. The representative referred to NJC decision 24.4.68, in which the Department did not dispute that supplying non-potable water was a problem, and that there was consensus that this constituted as a disruption to normal services, a breakdown of water facilities, and a serious health and safety concern. However, in the present case the Department maintains that because water was being supplied, albeit non-potable, there was no disruption of normal services.
The representative referred to subsection 6.11.1, which outlines the state of repair for which the Crown must provide and maintain residential property. The representative also noted that the water being supplied to the grievors did not comply with the standards set by Health Canada (HC) outlined for coliform, lead, turbidity, and halo acetic acids, nor with subsection 6.11.2, which outlines that housing units are to conform to the National Building Code (the Code), which, under subsection 9.31.31, makes it mandatory that every dwelling unit be supplied with potable water. The representative argued that providing jugs of potable water for drinking purposes does not conform to the Code, and that the water supply itself must meet HC standards; providing bottled water should only be used as a stopgap, temporary measure to relieve a temporary problem.
The representative shared with the Committee how the issues with the water had personally impacted each grievor and their families. Furthermore, failure to provide a potable water supply violates the purpose of the Directive by creating major disincentive to working in an IP. The representative argued that the Department should have done better for its employees, rather than forcing the grievors to endure substandard conditions for an egregiously long period of time.
The representative concluded by arguing that the Directive is clear in what standards of living are to be for employees in IPs, which includes the provision of a potable water supply, noting that a rent reduction of 100% until a potable water supply is installed is contemplated under paragraph 6.8.2(a). The representative argued that the grievors are seeking a full reduction for their shelter charges for every day on which they were placed under a boil water advisory. The grievors and their families suffered compensable harm by the Department failing to provide a safe water supply. For these reasons, the representative argued that the grievances should be upheld, and the corrective measures awarded.
Departmental Presentation
The Employer representative is of the opinion that the grievors were treated within the intent of the Directive. The representative submitted that section 6.8 of the Directive allows for compensation for employees for significant inconveniences resulting from severe unresolved issues, where problems have not been corrected within 30 days, such as burst pipes, etc. However, in the current context, all equipment underwent thorough inspection every four months, and there was no indication that there was a mechanical or equipment problem that played a role in the water quality issue. The representative argued that the water quality issue stemmed from factors beyond the Department’s control, such as the water source, challenges associated with the remote location, and weather conditions. The representative stated that it is the position of the Department that the turbidity of the water was not due to mechanical error, and therefore does not meet the criteria for a serious maintenance problem as outlined in section 6.8.
The primary concern was the water quality for the purposes of drinking and cooking, which could have been corrected by boiling the water before consumption to ensure elimination of contaminants and guaranteeing its safety. Nevertheless, the Department further corrected the issue by providing bottled water at no cost to the employees. The representative argued that the Department considers this to be a sufficient and reasonable solution to mitigate any adverse impact on the grievors. Regardless of the advisory status, the Department ensured that its employees had consistent access to bottled water for the purpose of drinking and food preparation, employees maintained regular access to water and sewage in their residences and had water for bathing and laundry. Therefore, there was no disruption to normal services.
The representative noted that the Department proactively safeguarded its employees by establishing a robust system that involved regular water testing, equipment inspections, decision-making in the employees’ best interest, provision of bottled water, timely communication of information, and ongoing enhancements to the equipment to eliminate the problem. Though the water advisory was lifted in January 2019, the Department continues to currently provide bottled water. Furthermore, in 2020, the Department installed additional water treatment equipment (reverse osmosis system) in each residence to ensure clean drinking water directly into employees’ kitchens.
The representative noted that there was no indication or proof that any grievors have fallen ill due to the boil water advisory, nor was there evidence suggesting that the equipment owned by the Department was at fault or improperly maintained. Furthermore, the grievors have not incurred any costs as a result of it. It was argued that the provisions of the Directive should not open way to personal gain, and regrettably, water quality issues are common in remote and isolated locations, for which employees are already compensated under the Directive with various allowances to account for the challenges associated with working and living in an isolated region.
The representative referred to NJC decision 24.4.68, noting the distinction between it and the present case. It was argued that the referenced decision is in relations to faulty equipment; however, in the present case the factors at play are beyond the Department’s control, and no equipment was broken or at fault regarding the safety of the water. Furthermore, in the referenced decision, a rent reduction was awarded to employees for having incurred costs for purchasing water and the delay in problem resolution, whereas in the present case, the grievors did not face any financial burden.
Therefore, for the reasons stated above, the representative submitted to the Committee that no special reduction be applied, as the issues had been promptly addressed by the provision of bottled water. As such there has been no disruption in water delivery or services to the grievors, as outlined in section 6.8. The representative maintained that the grievances be denied, and no corrective measures awarded. It was noted, however, that should the Committee uphold the grievance, any retroactivity be limited to the 25 working days preceding the date of the grievances.
Executive Committee Decision
The Executive Committee considered the report of the IPGH Committee and noted the IPGH Committee’s concern that the level of information provided by both sides was incomplete, rendering the development of a recommendation challenging. The Executive Committee agreed with the IPGH Committee’s finding that the grievors were not treated within the intent of the IPGH Directive. As outlined in subsection 6.11.1, the Crown must provide and maintain residential property in a state of repair that complies with health, safety and housing standards. Factors leading to the Committee's decision included but are not limited to, that the water distribution system was owned and maintained by the Department, that there were differing levels of service of water potability between the residents of the community, and the length of time until acceptable normal provision of the services resumed, recognizing that bottled water was provided as a remedial service for the entire duration of the period of the grievance. As such, the grievance is upheld.
The parties are directed to engage in discussions to determine a reasonable reduction of the shelter charge and the Department is directed to implement said reduction in a timely fashion. In the event the parties are unable to agree on a reasonable reduction, they are to advise the NJC Secretariat within 90 days of the date of the decision letter, and the matter will be returned to the Executive Committee for a determination.