FPSLREB Decisions

The grievances

1 Each of 34 employees (“the grievors”, identified in the schedule to this decision) working at the Employment Insurance (EI) Call Centre of the Department of Human Resources and Skills Development in Toronto, Ontario, has filed and referred to adjudication a grievance alleging that the Treasury Board (“the employer”) violated the collective agreement between itself and the Public Service Alliance of Canada (“the bargaining agent”) in respect of the Program and Administrative Services Group bargaining unit (all employees), which had an expiry date of June 20, 2007 (“the collective agreement”). (On December 12, 2013, the Department of Human Resources and Skills Development became the Department of Employment and Social Development.)

2 Specifically, it is alleged that the employer violated clause 28.05(a) of the collective agreement by failing to offer certain overtime opportunities to the grievors in 2007 when the employer was conducting a pilot project. Clause 28.05(a) reads as follows:

(a) Subject to the operational requirements, the Employer shall make every reasonable effort to avoid excessive overtime and to offer overtime work on an equitable basis among readily available qualified employees.

The French text of clause 28.05(a) of the collective agreement is as follows:

a) Sous réserve des nécessités du service, l’Employeur s’efforce autant que possible de ne pas prescrire un nombre excessif d’heures supplémentaires et d’offrir le travail supplémentaire de façon équitable entre les employé-e-s qualifiés qui sont facilement disponibles.

3 At the outset of the hearing, after receiving submissions from the parties, I ruled, over the employer’s objection, that in the first instance evidence and argument would be limited to the following issue: “Whether Toronto EI Call Centre employees were entitled to be offered overtime work on the pilot project.” Counsel for the employer, it should be noted, had observed in her opening statement that none of the grievors could succeed on his or her grievance without presenting evidence of being available and qualified for the work on the pilot project. Only a few of the grievors were in the hearing room at the time. It was obvious that the adjudication would be delayed and prolonged if each grievor had to testify about his or her availability and qualification for the work in question. I noted that, since all this detailed evidence would be unnecessary if, as counsel for the employer had claimed in her opening statement, the grievors had no right to be considered for these overtime opportunities even if they were available and qualified, it made sense that I should decide, in the first instance, whether, on the assumption they were all available and qualified, they were entitled to be offered the overtime opportunities.

The facts

4 Evidence, mainly uncontested, was presented by two of the grievors, Travis Lahnalampi, who was also a vice-president of the local union in 2007, and Bruce Flannigan, who was also president of the local union in 2007, and by Line Lacombe Laurin, Senior Director of National Call Centres, Service Canada, at the time.

5 In 2007, 15 call centres across Canada were responsible for handling the public’s requests for assistance with the EI program, the Canada Pension Plan and the Canada Student Loans Program. (Not all the call centres offered service for all three programs.) Approximately 1200 call centre agents were employed in the call centre network at the time. For EI enquiries, members of the public could telephone one of two “1-800” numbers to be connected to an agent who would provide service in the official language of their choice. The centres were open for business Monday through Friday from 08:30 until 16:30 (except in British Columbia, where business hours were from 08:00 until 16:00). Some call centres were unilingual, some bilingual.

6 A problem with workflow in the call centre network had been identified in 2006 (or maybe even earlier), namely, that there was a much higher volume of calls relating to the EI program on Mondays and Fridays than on the other days of the week, resulting from the requirement that EI clients enter their weekly claims for benefits on Fridays or Saturdays. Management decided that it would run a pilot project, from January to June 2007, in which it would open a couple of call centres on Saturdays in order to see whether Saturday opening would even out the workload and improve service to the public. It was decided that the call centres in Sudbury, Ontario, and Montreal, Quebec, would be the ones to participate in the pilot project. For the employees working there on Saturdays, the work would be overtime, which would be compensated at premium rates. The first Saturday of the pilot project was January 20, 2007.

7 Messrs. Lahnalampi and Flannigan testified that they learned of the pilot project from colleagues in the Sudbury Call Centre at the end of January 2007. They promptly raised the matter with management of the Toronto Call Centre at a Local Union Management Consultation Committee meeting held on February 2, 2007. They wanted to know why the Toronto employees had not been offered the opportunity to work Saturday overtime. According to the minutes of the meeting, management replied that the reason was the cost of $800.00 to open the Toronto building on Saturdays, to which the bargaining agent representatives responded that cost was not a relevant factor in the distribution of overtime. No other reason for the decision was given by local management.

8 They further testified that management controlled the flow of calls made to the 1-800 numbers, directing them to available call centre agents on a national basis.

9 Ms. Lacombe Laurin acknowledged in her testimony that the technology in use would have allowed incoming calls to be directed to any of the centres in the network. She explained why management selected the centres in Sudbury and Montreal and not the one in Toronto.

10 In the first place, the call centres in both Sudbury and Montreal offered bilingual service, while the Toronto one offered service only in English. Only bilingual agents were offered the opportunity of performing Saturday work on the pilot project. Ms. Lacombe Laurin conceded that some agents at the Toronto Call Centre might have been bilingual, but she doubted that any were qualified to provide service in both languages.

11 Secondly, management considered the security arrangements at the different call centres. In Toronto, employees wishing to access the call centre outside normal working hours had to telephone a manager, who would authorize access, whereas in Sudbury and Montreal a security guard gave them access.

12 Thirdly, the cost of opening the Toronto office on a Saturday would have been high, at $800.00 per hour. This was because that call centre was located in a large building, and it was not possible to provide ventilation, heating and lighting just for the area occupied by the call centre. Ms. Lacombe Laurin did not state the cost of opening the Sudbury or Montreal Call Centres on Saturdays, but testified that the Toronto cost was higher.

13 Fourthly, the employer’s practice was to have at least 10 call centre agents on duty at any call centre at the same time, since a supervisor and a quality assurance advisor were required to be present when calls were being received. In addition, arrangements had to be made for secure access. It was therefore impractical to have small numbers of employees working at several call centres.

14 Ms. Lacombe Laurin testified that since the initial results from the opening of the Sudbury and Montreal Call Centres were very encouraging, it was decided, as part of the pilot project, to open other call centres on Saturdays as well. At first, the centres in St. John’s, Newfoundland, and Vancouver, British Columbia, were added, and later the ones in Shawinigan, Quebec, Winnipeg, Manitoba, and Edmonton, Alberta. On March 31, 2007, the call centre in Toronto was included to increase English-language service on Saturdays.

15 Ms. Lacombe Laurin testified that, at the completion of the pilot project in June 2007, it was determined that Saturday opening had significantly improved service, and it was decided to open the EI call centres on Saturdays on an ongoing basis. The employer made Saturday work part of employees’ shift schedules, with the result that Saturday work no longer attracted premium compensation.

16 According to data produced by the employer, Saturday overtime for employees at the Toronto EI Call Centre had been minimal before March 2007. In March 2007, they worked a total of 227.75 hours of Saturday overtime. For the year ending March 31, 2007, they worked 417.25 hours of Saturday overtime. Employees at the Sudbury and Montreal EI Call Centres worked, respectively, 1640.50 and 1339 hours of Saturday overtime that year.

Pertinent legislative provisions

17 The following provisions were referred to:

[Sections 6 and 7 of the Public Service Labour Relations Act (PSLRA), S.C. 2003, c. 22, s. 2:]

6. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board under paragraph 7(1)(b) of the Financial Administration Act.

7. Nothing in this Act is to be construed as affecting the right or authority of the Treasury Board or a separate agency to determine the organization of those portions of the federal public administration for which it represents Her Majesty in right of Canada as employer or to assign duties to and to classify positions and persons employed in those portions of the federal public administration.

[Paragraph 7(1)(b) of the Financial Administration Act (FAA), R.S.C. 1985, c. F-11:]

7. (1) The Treasury Board may act for the Queen’s Privy Council for Canada on all matters relating to

…

(b) the organization of the federal public administration or any portion thereof, and the determination and control of establishments
therein ….

Parties’ submissions

18 The grievors’ representative noted that the employer was required, under clause 28.05(a) of the collective agreement, to “… make every reasonable effort … to offer overtime work on an equitable basis among readily available qualified employees.” He argued that the appropriate period over which comparisons should be made is the fiscal year and that there should be no significant gaps between employees within any 28-day cycle or within the fiscal year. While the employer’s obligation was stated to be “[s]ubject to the operational requirements,” the adjudicator had to determine whether any requirements relied on by the employer were reasonable. In particular, it was not legitimate or reasonable for the offering of overtime opportunities to be made dependent on cost considerations. Equitable distribution did not necessarily mean equal distribution. The comparison had to be made both within work units and between work units.

19 According to the grievors’ representative, the evidence did not establish the existence of any operational requirements that would have relieved the employer of its contractual duty to offer the overtime work in question to the grievors. No evidence was presented by the employer about the cost of opening the Montreal and Sudbury Call Centres on Saturdays. There was no valid reason English-language calls during the first phase of the pilot project could not have been directed to the Toronto Call Centre, as happened on and after March 31. The employer’s evidence demonstrated merely a preference, and not a legitimate operational requirement, for using the Sudbury and Montreal employees in the first stages of the pilot project. The data showed that, for the year ending March 31, 2007, the Toronto employees lagged well behind the Sudbury and Montreal employees with respect to Saturday overtime.

20 The adjudicator should therefore rule that the grievors were entitled to be offered overtime work on the pilot project in January, February and March 2007.

21 In response to a question from the adjudicator, the grievors’ representative maintained that, while the grievances were filed, for the most part, on February 22 and 23, 2007, all of them should be understood as referring to lost overtime opportunities in January, February and March 2007. In the first place, all the grievors alleged in their grievances that the employer “… should have offered the Saturday overtime commencing Jan. 20, 2007, to all employees in Employment Insurance Contact Centres,” which would include overtime both before and after the filing of the grievances. Secondly, the grievors’ representative argued, the grievances all flowed from a single decision by the employer that preceded their filing, namely, the decision not to open the Toronto office as part of the pilot project.

22 In response to a further question from the adjudicator, the grievors’ representative contended that the proper comparison was between the grievors, on the one hand, and the employees in the Montreal and Sudbury offices, on the other. The employees who had not grieved, whether at the Toronto office or elsewhere, must be taken to have had no quarrel with the manner in which the overtime had been distributed, and they should be left out of any comparisons.

23 In the course of his submissions, the grievors’ representative referred to Boujikian v. Treasury Board (Citizenship and Immigration Canada), PSSRB File No. 166-02-27738 (19980615), Zelisko and Audia v. Treasury Board (Citizenship and Immigration Canada), 2003 PSSRB 67, Bunyan et al. v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 85, Foote v. Treasury Board (Department of Public Works and Government Services), 2009 PSLRB 142, Weeks v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 132, Mungham v. Treasury Board (Correctional Service of Canada), 2005 PSLRB 106, and McCallum v. Canada Revenue Agency, 2011 PSLRB 73.

24 Counsel for the employer noted that the employer had the exclusive right to organize the workplace. This right was entrenched in the legislation, particularly in sections 6 and 7 of the PSLRA and section 7 of the FAA. One aspect of the organization of the workplace was the determination of hours of operation. The employer in this case had determined that the hours of operation of the Sudbury and Montreal Call Centres, but not of the Toronto Call Centre, would include Saturdays. The overtime that is the subject of these grievances resulted from this change in hours of operation. Counsel argued that the decision to offer overtime only to the employees in Sudbury and Montreal was no more subject to an adjudicator’s review than the decision to open only those two call centres.

25 According to counsel for the employer, equitability in the distribution of overtime opportunities had to be assessed over a reasonable period, preferably a fiscal year, and the comparison had to be made between all similarly situated employees. The burden was on a grievor to prove inequitable distribution.

26 Counsel for the employer argued that it was implicit in the concept of the “operational requirements” to which overtime distribution was subject that comparisons between employees had to be made within each workplace. It had never been suggested before this case that the employer should be comparing the hours of overtime offered to all the qualified employees at different workplaces across the country, even in different departments, which is what the grievors were suggesting. It would be absurd to impose on the employer the obligation to make such a far-reaching and cumbersome comparison before it offered overtime. It was implicit in Bunyan et al., cited by the grievors’ representative, that equitability of overtime allocation had to be assessed at the level of each work unit.Each workplace had its own set of operational requirements. In the present case, the employer was justified in limiting the overtime opportunities to the Sudbury and Montreal Call Centres in view of factors such as the need to provide bilingual service, the cost structure of the different call centres, the time zones and the security arrangements.

27 In the course of her submissions, counsel for the employer relied on Canada (Attorney General) v. Bucholtz, 2011 FC 1259, Canada (Attorney General) v. McManaman, 2013 FC 1064, Wamboldt v. Canada Revenue Agency, 2013 PSLRB 55, Jenks et al. v. Canada Revenue Agency, 2010 PSLRB 27, and Weeks.

Reasons

28 The issue I have to resolve at this stage is whether, on the assumption that the grievors were available and qualified to work on the pilot project from January 20 to March 24, 2007, they were entitled to be offered the opportunity to do so under clause 28.05(a) of the collective agreement.

29 Most of the argument I heard revolved around the relationship between the grievors’ workplace in Toronto and the call centres in Sudbury and Montreal. The grievors argued that the higher cost of opening the Toronto Call Centre was not a valid reason for denying these opportunities to the grievors, since the case law had firmly established that the employer could not take account of the cost of having overtime performed in deciding which employees would be offered the opportunity to do the work. The grievors also observed that the technology used by the employer enabled incoming calls to be switched seamlessly to any call centre agent anywhere in the network. The employer replied that it would be absurd to conclude in the circumstances that an employee working at a workplace other than Sudbury or Montreal had any right or expectation to work on this pilot project. The employer argued that the adjudicator could avoid this absurd result either by holding that the “operational requirements” referred to in clause 28.05(a) of the collective agreement precluded the work being offered outside Montreal or Sudbury or by finding that the employer’s designation of the employees who would be offered the work flowed from, and was inextricably linked to, its decision as to which centres to open on Saturdays, a decision taken pursuant to entrenched management rights.

30 I am not satisfied that operational requirements made it necessary for the employer to have the work performed in Sudbury and Montreal but not in Toronto. I am inclined to agree with the grievors that the employer merely had a preference for the Sudbury and Montreal locations, and not a requirement in that respect. I do not question the employer’s good faith: there was nothing arbitrary in its preference for the Sudbury and Montreal locations, based as it was on their bilingual workforce, on the lower cost of opening the call centres there on Saturdays, on the security arrangements in place, etc. Its decision doubtless made good business sense, but that does not raise its preference to the level of an operational requirement.

31 In my view, sections 6 and 7 of the PSLRA, on the other hand, do preclude a finding that the grievors had a claim to the work on the pilot project, although not in precisely the way articulated by employer counsel. In particular, I should state that while an adjudicator cannot question or compel the employer’s exercise of its entrenched prerogative, I am satisfied that overtime resulting from the exercise of that prerogative is fully subject to the terms of the collective agreement.

32 However, sections 6 and 7 of the PSLRA are relevant in the following way. Clause 28.05(a) of the collective agreement creates a right to be offered overtime opportunities only for employees who are “readily available” to perform the work. I assume, for the purposes of this decision on the preliminary question, that the grievors were “available” on the Saturdays in question, in the sense that, if they had been offered the chance to work overtime at the Toronto Call Centre, they would have accepted it. However, some meaning must also be attributed to the word “readily”: see International Woodworkers of America, Local 2-1000 v. G.W. Martin Lumber Ltd. (1972), 24 L.A.C. 352, in which the arbitrator said the following:

…

… It is a recognized canon of construction that in interpreting documents they should be construed so as to give effect to every word, and a word should not be disregarded if some reasonable meaning can be given to it. It has further been held that it is a good general rule that one who reads a legal document, whether public or private, should not be prompt to ascribe -- should not without necessity or some sound reason impute -- to its language tautology or superfluity….

…

34    The employer had decided not to open the Toronto Call Centre on the Saturdays in question. As that is a matter within the exclusive and entrenched prerogative of the employer under sections 6 and 7 of the PSLRA, I have no authority to declare that the employer should have opened it for the grievors or to question its failure to do so. The grievors thus had no workplace open to them in Toronto on the days in question. I understand the words “readily available” in this context to mean not only that employees must be available to do the work required of them, but also that there must be little or nothing that would prevent them from actually performing the work in accordance with the employer’s requirements if it were assigned to them. This notion, I believe, is implicit in the French text of clause 28.05(a) of the collective agreement, in which the phrase “facilement disponibles” is used for “readily available”. It is also implicit, for example, in Kirkland and District Hospital v. Service Employees International Union, Local 204, [2004] O.L.A.A. No. 71 (QL), in which the collective agreement allowed the employer to assign a manager to drive an ambulance if regular employees were not “readily available.” The arbitrator, in dismissing the grievance, said the following:

… Accordingly, "readily available" must be taken to mean at hand. That is, if a regular employee is not at the ambulance base, they are not readily available to perform the duties normally assigned to them. It cannot be that the parties intended with article 13.01 to create a situation whereby an emergency patient would languish while a bargaining unit member came to the base to fetch an ambulance, as the manager stood by at the base holding the keys to the ambulance.…

35    The absence of a Toronto workplace for the grievors on the days in question makes it impossible for me to conclude that they were “readily available” to perform the work. They would have been “readily available” and thus entitled to be assigned the overtime work only if, at a minimum, they could have accessed a place from which the work could be performed. Clause 28.05(a) of the collective agreement cannot be interpreted as requiring the employer to open the Toronto Call Centre, since opening an office for business is a matter within the employer’s exclusive prerogative. Even if clause 28.05(a) gave them a claim to go to the Montreal or Sudbury Call Centres and perform the work there (which I doubt), they would have had to travel there, which in itself would have been an impediment to their ready availability for the work.

36    It follows that the only employees who were “readily available” for the overtime opportunities on the Saturdays before March 31, 2007, were those who had a place to work on those days, namely, the employees at the Sudbury and Montreal Call Centres. The grievors, not being among that pool of employees, had no right to be offered those opportunities.

37    For all of the above reasons, I make the following order:

Order

38    The grievances are dismissed.

February 21, 2014.

Michael Bendel,
adjudicator

SCHEDULE

PSLRB File Nos.               Grievors

566-02-2013                    Lahnalampi, Travis

566-02-2014                    Marinucci, Gilda

566-02-2015                    McCarthy, Bev

566-02-2016                    Morden, Amber

566-02-2017                    Myint-Swe, Joycelyn

566-02-2019                    Raikundalia, Jay

566-02-2020                    Ray, Elizabeth

566-02-2021                    Reid, Cleopatra

566-02-2022                    Russell, Craig

566-02-2023                    Sahota, Harminder

566-02-2024                    Sciacca, Antonella

566-02-2025                    Shin, Brian

566-02-2026                    Stanley, Scott

566-02-2027                    Syropiatko, Beata

566-02-2028                    Visco, Mary

566-02-2029                    Walters, Suzanne

566-02-2030                    Watters, Tracey

566-02-2031                    Ali, Sharon

566-02-2032                    Awuku, Enid

566-02-2033                    Beeston, Latricia

566-02-2034                    Budgell, Barbara

566-02-2035                    Canale-Parola, Gennaro

566-02-2036                    Cooper, Kathy

566-02-2037                    Court, Amabel

566-02-2038                    Descotes, Roger

566-02-2039                    Fairclough, Omar

566-02-2040                    Flannigan, Bruce

566-02-2041                    Gagnon-Fitzgerald, Megan

566-02-2042                    Graham, Robert

566-02-2043                    Hercules, Simone

566-02-2044                    Jeganathan, Julian

566-02-2045                    Johnson, Diane

566-02-2046                    Jones, David

566-02-2047                    James, Clint