Union files grievance over overtime hours

Express overtime provisions of the agreement were not triggered

The Public Service Alliance of Canada filed a grievance against Hay River Health and Social Services Authority after overtime hours were given to casual employees in preference to full- and part-time employees.

The employer provides health and social services at two long-term facilities in Hay River, N.W.T. Employees can be full-time, part-time or casual. Employee are permitted to hold a casual position in conjunction with a full- or part-time position.

The union alleged the employer was calling in casual employees or full-time employees working as casual employees in another department to perform work before calling in full- and part-time employees.

Under the parties’ collective agreement, the employer was permitted to schedule 12-hour shifts but overtime had to be paid for all hours worked beyond 7.5 hours per day or 37.5 hours per week.

When it was necessary to call an employee in to replace a full-time employee, the employer first looked to fill the shift with a part-time or casual employee who had not yet worked the maximum number of hours per week. If no such employees were available, the employer scheduled full-time employees.

The union argued these last 4.5 hours of a 12-hour shift constitutes overtime work and were subject to the protocol for offering overtime work in the parties’ agreement.

The employer admitted that casual employees were being called in to work 12-hour shifts in preference to full-time employees and paid at the overtime rate for the last four or 4.5 hours of their shift. However, the employer argued the casual employees were not being paid overtime as defined in the parties’ collective agreement but rather were being paid statutory overtime as required by the Employment Standards Act.

The employer further denied giving overtime shifts to full-time employees working as casuals in another department in preference to full-time employees regularly working in that department.

Arbitrator Rebecca Thompson agreed with the employer.

“When casual employees are called in or scheduled to work a 12-hour shift, the ‘regular’ or ‘full-time hours for the position’ are 12 hours per shift,” Thompson said.

“The express overtime provisions of the collective agreement are not triggered. The statutory requirements of the ESA, or perhaps a requirement in an extended hours permit, explain why payments are made to casual employees at 1.5 times their regular rate of pay in these circumstances.”

As a result, the grievance was dismissed.

Reference: Hay River Health and Social Services Authority and the Public Service Alliance of Canada. Rebecca Thompson — arbitrator. Michelle Theriault for the employer, Rosalie Patrick for the union. Feb. 23, 2016.

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