GSB#2018-2646

UNION# 2018-0603-0003

IN THE MATTER OF AN ARBITRATION

Under

THE CROWN EMPLOYEES COLLECTIVE BARGAINING ACT

Before

THE GRIEVANCE SETTLEMENT BOARD

BETWEEN

Ontario Public Service Employees Union (Jeffery et al)

Union

• and -

The Crown in Right of Ontario (Ministry of Natural Resources and Forestry)

Employer

BEFORE

Barry Stephens

Arbitrator

FOR THE UNION

Alex Zamfir Ontario Public Service Employees Union Grievance Officer

FOR THE EMPLOYER

Omar Shahab Treasury Board Secretariat Legal Services Branch Counsel

HEARING

May 17, 2019

Decision

1This matter was heard under Article 22.16 of the collective agreement. The parties participated in a mediation process at the hearing on May 17, 2019 but were unable to find a mutually acceptable solution to the grievance. As a result, under the terms of Article 22.16, I am tasked with providing a “succinct” decision resolving the dispute. The collective agreement states that decisions rendered under Article 22.16, “…shall have no precedential value unless the parties agree otherwise.”

2The grievance involves an overtime claim regarding a twelve-hour shift on June 18, 2018. There is an overtime protocol policy that governs the assignment of overtime in this workplace. The policy stipulates that the employer will consider overtime assignments when, “…all other possibilities have been exhausted in an attempt to fill the shift.” I note that the use of fixed-term employees is the only specifically identified method by which the employer may avoid overtime. The policy also provides that, where an overtime opportunity is created, it shall be offered to employees on the overtime list in sequence.

3The shift on June 18 was assigned to a fixed-term employee. As a result of the assignment of this shift, the fixed-term employee’s anticipated hours for the two-week period in question totaled 84 hours. There is no dispute, therefore, that the fixed-term employee became eligible to four hours of overtime when the shift was assigned.

4The union argues from these facts that the shift in question represented an overtime opportunity in its entirety (i.e. 12 hours), and that employees on the overtime list should be reimbursed for the loss of opportunity. The employer argued that the extent of overtime available was not greater than 1.5 hours, given the number of hours actually worked by the fixed-term employee during the relevant two-week period.

5In my view, the overtime opportunity should be measured by the number of hours of overtime available at the time the shift was offered. However, it is also my view that the overtime protocol is drafted in such a way as to place considerable emphasis on the employer’s right to take any reasonable measures to avoid overtime, and specifically to do so by using fixed-term employees. As a result, I find that the employer should pay the equivalent of four hours of overtime pay to the employee who would have been next offered overtime on the night in question. According to the records I was provided, the next eligible employee on the overtime list was Jamie Boston.

6I remain seized to deal with any issues arising from the implementation of this award.