# 2010-001 - Allowances and Benefits, Entitlement to Land Duty Allowance (LDA) for members assigned to an internal...

Allowances and Benefits, Entitlement to Land Duty Allowance (LDA) for members assigned to an internal task, Imposed Restriction (IR), Right to Grieve – Regulations Made by the Governor in Council

Case Summary

F&R Date: 2010–06–03

Since 2003, the grievor, a Regular Force member, has been posted to a particular unit. However, between 2006 and 2009, the grievor was assigned to an internal task belonging to another unit.

In 2008, the new policy related to the land duty allowance (LDA) was adopted retroactive to 1 April 2007. On 1 October 2008, the list of field units was published, and the grievor’s unit was on the list. However, the unit where the grievor had been performing an internal task was not on the list, and the complainant was informed that he could not receive the LDA because he had been temporarily assigned to a unit that was not eligible for the LDA. The complainant filed a grievance against this decision.

The IA, the Director General Compensation and Benefits (DGCB), firstly indicated that because the Compensation and Benefits Instructions (CBI) 205.33 – Land Duty Allowance – was a Treasury Board (TB) policy, a CF member could not object to it through a grievance, in accordance with 7.01(1)(c) of The Queen's Regulations and Orders for the Canadian Forces – Right to Grieve – which stipulates that there is no right to grieve in respect of a matter or case prescribed by the Governor in Council in regulations.

The IA also concluded that in accordance with CBI 205.33(6)(f), the complainant could not receive the LDA because he had been temporarily posted for a period of over six months to a unit that was not recognized as a field unit.

The Board firstly pointed out that TB regulations are not regulations made by the Governor in Council. The Board also explained that QR&O 7.01(1)(c) does not prevent members from filing grievances against matters governed by regulations made by the Governor in Council. Rather, it enables the Governor in Council to make regulations excluding specific matters or cases from the grievance process. The Board concluded that there is no regulation made by the Governor in Council that excludes matters or cases governed by the CBI on the grievance process.

After examining the difference between attached posting and assignment to an internal task, the Board concluded that one is not the same as the other and that CBI 205.33(6) only applies to attached postings; it does not eliminate eligibility for the LDA for members who are simply assigned to internal tasks from one unit to another, as long as the member is posted to a field unit. The Board therefore concluded that the complainant was entitled to the LDA for the entire period of his assignment.

Recommendation

The Board recommended that the CDS allow the grievance.

Systemic recommendations

Right to grieve – Regulations made by the Governor in Council

The Board recommended that the CDS inform the DGCB of his misinterpretation of QR&O 7.01(1)(c) in order to improve the effectiveness of the grievance process and standardize the interpretation of subsections 29(1) and (2) of the National Defence Act (NDA).

Eligibility to the LDA for members assigned to an internal task

The Board also recommended that the CDS order that eligibility for the LDA for members from the complainant’s base who belong to a field unit and who worked on an internal task for more than six months in another unit be reviewed from 1 April 2007 onward in order to restore their entitlement to the LDA.

CDS Decision Summary

CDS Decision Date: 2011–04–26

The CDS partially agreed with the Board’s recommendations. The CDS agreed with the Board when it found that CBI 205.33(6) only applies to attached postings; it does not eliminate eligibility for the LDA for members who are simply assigned to internal tasks from one unit to another, as long as the member is posted to a field unit. The grievor is therefore entitled to the LDA for the entire period of his assignment. Lastly, the CDS agreed with the Board’s systemic recommendation to order that eligibility for the LDA for members from the Valcartier base who belong to a field unit, who worked on an internal task for more than six months in another unit, be reviewed from 1 April 07 onward in order to restore their entitlement to the LDA. However, the CDS did not follow the systemic recommendation to inform the DGCB of his misinterpretation of QR&O 7.01(1)(c) on the ground that since the IA was included in the distribution list for the decision, he was automatically informed.

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