FPSLREB Decisions

Heard at Calgary, Alberta,
March 17 and 18, and August 11 and 12, 2015.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

1        The grievors, Andrew Dewit, Glen Dunbar, Jim Peterson, and Ian Saunders, grieved the Canada Revenue Agency’s (“the employer” or CRA) decision to deny them the opportunity to work overtime in a different section of its Tax Services Office (TSO) in Calgary, Alberta, on the basis that they were not qualified for the work, contrary to clause 28.05 of the agreement between the CRA and the Public Service Alliance of Canada for the Program Delivery and Administrative Services Group; expiry date: October 31, 2012 (“the collective agreement”).

2        On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (“the new Board”) to replace the former Public Service Labour Relations Board (“the former Board”) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments contained in sections 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40) also came into force (SI/2014-84). Pursuant to section 393 of the Economic Action Plan 2013 Act, No. 2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; “the Act”) before November 1, 2014, is to be taken up and continue under and in conformity with the Public Service Labour Relations Act as it is amended by sections 365 to 470 of the Economic Action Plan 2013 Act, No. 2.

II. Summary of the evidence

3        The four grievors worked in the CRA’s Revenue Collections Division (“the division”) between September 2010 and March 2011. They were all team leads (TL) in the division’s Trust section. They were all denied overtime opportunities that the employer offered in the division’s Accounts Receivable section at the Calgary TSO between September 29, 2010, and March 31, 2011. Each had at one time been a TL in the Accounts Receivable section before working in the Trust section. All four claimed they were readily available and qualified when they were denied the overtime opportunities, and they were in a qualified overtime pool as TLs. Mr. Dewit filed a second similar grievance when he was denied the opportunity to work overtime in the Trust section as a TL since he had moved from there to the Accounts Receivable section.

4        Ken Grey was employed by the CRA between 1976 and 2013, 20 years of which as a TL in the Compliance and Identification section. While he was a TL in the Compliance and Identification section, he worked overtime as a TL in the Collections and the Accounts Receivable sections. He worked overtime as a TL most recently between September 2010 and March 2011. A TL’s primary role on an overtime shift is to be a timekeeper — to ensure those scheduled to work overtime are there and are in fact working. After 6 p.m., certain areas of the workplace are restricted, and a special swipe card is required to access these areas. The TL controls the swipe card required to access these areas. In addition, the TL on an overtime shift performs a security function by locking the premises and ensuring the work area is vacated at the end of the shift.

5        While at his or her desk during an overtime shift, a TL works on his or her own files. No employee performance matters are dealt with on an overtime shift. Doing so would require the TL to leave the work area, making him or her unavailable to those working the shift. Employees working overtime were directed to Mr. Grey by their day supervisors if they required a supervisor’s assistance. On any given overtime shift, he was responsible for up to nine people from other teams. He was a resource for them but did not review their work unless they brought a specific question to him. In Mr. Grey’s opinion, a TL who knows the organizational culture, policies, and procedures and works in the divison could work a shift as a TL in Accounts Receivable.

6        Mr. Dewit started at the CRA in 1997 in Accounts Receivable. In 2007, he became a TL and since then has worked in Accounts Receivable and in the Trust Exam area of the Trusts section. The Trusts section is comprised of three areas: Trust Exam, Trust Compliance and Employer Compliance Audit. In 2011, he was assigned permanently to Accounts Receivable. As a TL, he was consistently rated as “Meets Plus” on his annual performance reviews.

7        His experience was that overtime had been distributed to all TLs, who had all been advised at the same time about the available overtime. Before 2010, he was allowed to work overtime outside his assigned area. He supervised whoever was working overtime; no distinction was made based on the type of work being done. In 2009, Terry Harder became the assistant director of the Calgary TSO, following which Mr. Dewit was no longer eligible for overtime in other sections.

8        Mr. Dewit filed his first grievance after he was denied the opportunity to work overtime on September 28, 2010. He had not been notified that overtime was available until a colleague informed him. He met with his manager, David Mapplebeck, and advised him that he wanted to work overtime, wherever it was available. When Mr. Dewit submitted this request, he was advised that overtime was available only in Accounts Receivable and that money could not be transferred from there to Trusts to fund overtime in Trusts. Nevertheless, Mr. Mapplebeck took notice of the request and agreed to speak to Mr. Harder and to get back to Mr. Dewit with an answer.

9        Mr. Dewit then spent several months trying to get a response to his request. Rules concerning working overtime were disseminated to employees in September 2010, and instructions from the employer followed in October 2010. Mr. Dewit again raised the topic on November 9, 2010, at a Trust Exam section meeting. Mr. Mapplebeck told him that TLs in each function were considered TLs in separate qualified areas.

10        In January 2011, Mr. Dewit learned at a section meeting that funds had been transferred between Accounts Receivable and the Trust Compliance sections to fund overtime, contrary to what Mr. Mapplebeck had told him, which confused Mr. Dewit.

11        In February 2011, the grievors asked to supervise overtime in Trust Compliance. None of them had experience there, and all were unfamiliar with the work done there. They asked how the overtime would be distributed there and were advised that the employer had devised a lottery system.

12        Mr. Dewit worked one overtime shift supervising Trust Compliance personnel working overtime that month. The work done there was completely different from that done in Trust Exam, where he worked. He worked the shift successfully; it was strictly supervisory work. He was able to research questions on the CRA’s intranet and provide employees with the answers. All policies, rules, and procedures are on the intranet for TLs and managers to access, and they change constantly; therefore, every question requires research, no matter the section.

13        On February 22, 2011, overtime became available in the Trust Exam section and continued until the end of March, and Mr. Dewit did share in it. However, he never received a shift in Accounts Receivable. He also worked overtime in Trust Compliance, an area he had never worked in before.

14        At some point in February 2011, Mr. Dewit discussed overtime in Accounts Receivable with his union representative, David Fandrich. The grievors met with Mr. Fandrich and Mr. Harder to discuss overtime distribution on March 17, 2011. At the meeting, Mr. Harder stated that it was the first time he had heard of the grievors’ request, and he expressed his surprise. He was unaware that they had requested to work overtime outside their assigned section. Mr. Harder then asked them about their background and work experience. Mr. Harder asked Mr. Dewit if he expected to be paid for doing nothing and insinuated that he did not feel that the grievors were qualified to work in Accounts Receivable. He also posed questions to gauge their knowledge of Accounts Receivable and their qualifications. The tone of the meeting became uncomfortable, and Mr. Saunders commented on it. The questioning stopped.

15        After working the overtime in Trust Compliance in February 2011, Mr. Dewit transferred to Accounts Receivable as a TL in April 2011. His qualifications were not assessed; nor was any question raised as to his competence to work there. He received no training.

16        In September 2011, overtime was proposed for the Trust Exam section and not for Accounts Receivable. Mr. Dewit spoke to his manager, Gord Ross, about working that overtime. He followed up with an email request, which was denied. No rationale was provided. TLs in Trust Exam were assigned overtime, and even though he had left Trust Exam six months earlier, Mr. Dewit was refused overtime in that section because he was not qualified. The other grievors did work that overtime.

17        The job description, delegations of authority, expectations, and tools for TLs are identical no matter in which section they work. Nevertheless, the employer refused to allow the grievors to work overtime in any section but their own. The last technical training that Mr. Dewit received in Accounts Receivable was in 2011. Trust Exam and Accounts Receivable have much in common as they deal with the same files, just at different times in the process. The different elements of an account fall into a number of areas. The complexity of the accounts’ files is a distinguishing feature. The Trust Compliance and Trust Exam sections have the same manager.

18        Mr. Peterson has been a TL since 2002. In 2006, he was a TL in Collections area of Accounts Receivable. In January 2009, he became a TL in Trust Exam. In August 2014, he moved back to Accounts Receivable. When he returned there, his qualifications were not assessed. He has spent all but five years of his career in Accounts Receivable, and based on his experience there and in Trust Exam, they have elements in common.

19        Mr. Peterson had worked in Accounts Receivable up to January 2009 and was interested in the overtime that was available there between September 2010 and March 2011. He had worked overtime as an Accounts Receivable TL and was familiar with the role, which included supervising employees and handling security, and he was one of the TLs supervising other teams on overtime shifts. He made his formal request to Mr. Mapplebeck, and like Mr. Dewit, was refused the opportunity. The matter was discussed formally at section meetings and was raised casually at other times. The answer was always that no money was available for overtime in the Trust Exam section. The matter was raised at every section meeting after September 2010.

20        When Mr. Peterson asked if the grievors could work overtime in Accounts Receivable, Mr. Mapplebeck initially told him that he would bring it up with the assistant director and then said that that overtime was not available to the TLs in Trust Exam. Mr. Mapplebeck told the grievors that the funds for the overtime were set aside for Accounts Receivable and that they could not be shifted to cover overtime the TLs work in other sections, which was noted in Trust Exam section meeting minutes (Exhibit 5). In previous years, overtime had been open to all TLs, not just to those in Accounts Receivable, no matter the funding source.

21        Mr. Dunbar began his career with the CRA in 1990 and was a TL in Accounts Receivable from 2001 to 2007. In January 2009, he became a TL in Trust Exam. He returned to Accounts Receivable in December 2013 with no training, assessment, or discussion of competencies or qualifications; he was just given a new team.

22        Between September 2010 and March 2011, he too asked to be included in consideration for the available overtime. He was present at the section meetings at which he and his coworkers requested overtime and questioned Mr. Mapplebeck about it. Mr. Mapplebeck advised them that no money was available for overtime in Trust Exam, only in Accounts Receivable.

23        Mr. Dunbar was also present at the meeting with Mr. Harder. He described the nature of the questions that Mr. Harder asked. Mr. Harder came to the meeting with a list of prepared questions based on his reading of case law. The tone of the questioning was aggressive. At the end of the meeting, he said that he would look into the matter further, talk to his director, and get back to them. He never did.

24        Mr. Saunders was a TL in the taxpayer services call centre in 2008 when he was laterally transferred to be a TL in Accounts Receivable. He then became a TL in 2009 in Employer Compliance Audit, which was part of the Trusts section, as was Trust Exam. In 2012, he moved back to Accounts Receivable. Between September 2010 and March 2011, he asked Mr. Mapplebeck for the opportunity to work overtime in Accounts Receivable. Mr. Mapplebeck agreed to look into it. Like the other grievors, Mr. Saunders raised the request at each section meeting. He also met with Mr. Mapplebeck on his own, independent of the other grievors.

25        The answer the grievors initially received from Mr. Mapplebeck was that overtime funding was available only in Accounts Receivable. Gradually, however, the answer changed. At the end of the discussions, the employer changed its response, stating that the grievors were not qualified to be TLs in Accounts Receivable. The closer to the end of the overtime year, the more the employer’s reasons for denying the grievors overtime changed.

26        By March 17, 2011, Mr. Saunders was the only TL not working overtime because his team was meeting its targets. He was told that he was not qualified to work in any of the other areas where overtime was available even though he had the same competencies and job description and had extensive experience. Nevertheless, he worked two overtime shifts in Trust Compliance, where he had never worked before.

27        At the March 17 meeting with Mr. Harder, he too was accused of wanting to be paid for doing nothing. Like the other grievors, Mr. Saunders was asked about his background and how he kept up to date with the material. Also like the others, he was asked specifics of when he had helped people with accounts. He was unprepared for such questions. Mr. Harder’s tone was aggressive, and Mr. Saunders felt bullied. According to Mr. Harder, his questions were intended to determine the grievors’ qualifications to work overtime in the future.

28        Mr. Harder testified that in 2010, a number of issues arose with Accounts Receivable and Trust Exams, including some about quality. Those programs are different and have different authority levels, based on a file’s level. The division includes the Non-filer, Accounts Receivable, and Trust sections. The Trust Section is further divided into three subsections: Trust Exam, Employer Compliance Audit, and Trust Compliance. Trust Exam, where all but one of the grievors worked, issues reassessment notices, which Accounts Receivable collects if the taxpayer does not pay. TLs review those reassessments and are expected to provide technical advice on program lines, supervise employees, enforce legislation, discuss the performance results of their teams, complete performance reviews, carry out career planning exercises with employees, when necessary accompany employees when they meet with taxpayers, and carry out other administrative functions.

29        On overtime shifts, TLs’ duties are a subset of their regular everyday duties. Overtime is intended to complete work previously assigned and not to be an opportunity for new work. Supervision involves providing advice and direction to employees, ensuring compliance with the collective agreement, following policies and procedures, building a team, and monitoring performance. The entire gamut of TL duties is required in the supervision of employees on working overtime shifts. TLs on overtime do more than watch people work. If employees on overtime do more work, then referrals for the TLs to approve will increase and more checklists will need completing.

30        The purpose of overtime is to meet program objectives. Whether overtime is authorized is Mr. Harder’s decision. A manager will put together a business case seeking approval for overtime in a specific program area. Depending on the program pressures, Mr. Harder will determine whether salary dollars may be used to fund overtime. There is no budget specifically for overtime; funding comes from the salary budget. If a program is meeting its expectations, there is no need for overtime, and none will be authorized. Overtime is offered to all qualified employees in the program line. No overtime is offered to a TL from a different section without Mr. Harder’s approval. Overtime is about where the work needs to be done and not about who will do it.

31        Contrary to Mr. Grey’s description of overtime duties, Mr. Harder did not expect that the primary role of a TL on overtime would be watching people work. Mr. Grey described only part of the job according to Mr. Harder. However, since he did not work overtime, he did not know what the TLs do on an overtime shift. While TLs on overtime do their core duties, it is possible that a TL from the Trust section could have supervised Accounts Receivable personnel on overtime at the same time in the past. Mr. Harder disagreed with Mr. Dewit when he testified that training courses are transferable from one business line to another; they are specific to each business line.

32        Mr. Harder was aware that the grievors had requested overtime between September 2010 and March 2011. Mr. Mapplebeck told him that there were no pressures in their own areas, so there was no overtime. He asked if the grievors could be allowed to work overtime in Accounts Receivable when it was available. Mr. Harder expected overtime to go to the TLs in Accounts Receivable. It was not appropriate in his opinion for TLs from Trust Exam to work overtime in a different business line. It might have been otherwise before his arrival, but he changed it when he arrived.

33        At the March 17, 2011, meeting, he asked questions of the grievors because he could not administer a test. Based on his assessment, he determined that they were not qualified to work in Accounts Receivable even though they had the same generic job description, qualifications, and competencies because they were then working in a different business line, but they did not have current knowledge of Accounts Receivable. No effort was made to qualify TLs from Trust Exam to work in Accounts Receivable. Had they wished to be qualified, they would have had to move back to Accounts Receivable.

34        Rosemary Moore has been the manager in the Accounts Receivable section since April 2008. Earlier in her career, she was a TL there. According to her, a TL working there is to manage the people on his or her team, meet the year’s objectives, administer the collective agreement, and ensure proper staffing. A TL should have strong technical knowledge of programs being delivered, such as collections, to be able to advise employees on his or her team and to direct them in their daily work. Policies, procedures, and legislation change continuously, and knowledge become outdated quickly. TLs are required to keep up with such changes.

35        A TL is not assessed when he or she moves from one team or section to another. Candidates are not asked questions about their suitability. The management team meets, discusses candidate suitability, and makes decisions. After changing sections, it is expected that a TL will catch up with any changes. It is not expected that a TL will be completely up to date when he or she starts in Accounts Receivable. A period of adjustment is required.

36        A TL provides support to Accounts Receivable in his or her daily work, ensures that the work complies with policy and is completed in a timely fashion, and ensures the employees have the necessary tools and training to complete the work. A TL is assigned to the same team for at least a couple of years. Performance issues are to be identified and can be assessed when an employee works overtime. Supervising on overtime is the same as supervising during the day, although Ms. Moore was not sure of a TL’s exact duties when working overtime. She believed that TLs could focus the work to ensure best results.

37        Who is offered overtime depends on the objective of the overtime. Funds used to pay for overtime are targeted. The practice was to use funds from the programs, as it was more expedient. In 2010, Accounts Receivable received funding for overtime to target two areas that were not meeting their targets and to improve their results. Overtime was offered to collectors (SP-05s) and resource officers (SP-07s) in the areas where targets were not being met and to the TLs for whom those individuals worked. Overtime was not offered to TLs from other teams in 2010. The Accounts Receivable TLs were familiar with the program and its objectives.

38        Ms. Moore was unaware that TLs from Trust were interested in working overtime in Accounts Receivable. She would not have offered overtime to the TLs from Trust as they did not report to her and would not have known her priorities. Administratively, it made more sense to have people work the overtime whom she was comfortable with and who she knew were competent. All the grievors had previously worked in Accounts Receivable and were qualified to work there. Since they were TLs in Trust and did not report to her, she did not know their abilities. A TL working on overtime priorities had to have a level of knowledge sufficient to direct the employees.

39        Mr. Mapplebeck has been the section manager in Revenue Collection (Trusts) since May 2009. Before then, he was, among other things, a TL. He described the role of a TL in Trust Exam as assigning work, monitoring work, approving accounts examined, and moving them along for processing. As employees perform their functions in the process, they may have questions, which will be referred to the TL for direction. When reviewing accounts, the TL checks to ensure that they are correct and complete. The TL monitors the files’ ages to ensure that work is done in a timely fashion. A TL on overtime does the same work as during regular work hours. TLs move from section to section. The employer tries to rotate them through positions across the division, typically at the beginning of the fiscal year.

40        A TL must have the technical capacity for the work in a particular program to assess if the work is complete, which requires knowledge of the subject matter and the ability to determine if the requirements have been met. How quickly knowledge becomes dated depends on the individual. To be up to date, a TL requires functional knowledge of the requirements of a program and of changes to it, and such changes must be communicated to the staff. A TL requires knowledge of the individuals working on his or her team to properly assign work to and coach them. Those things are learned on the job. All the grievors worked in the Trust section before transferring to Accounts Receivable. None was trained or evaluated when approved for transfer.

41        Overtime includes some specific functions, such as security, but the rest of the duties done on overtime are a TL’s regular daily duties, including the supervisory functions. It is normal that referrals arise from overtime work that a TL is required to deal with the following day.

42        Funding for overtime in the Calgary TSO originates at the CRA’s national or regional headquarters. Mr. Mapplebeck has minimal input into funding requests for overtime. Overtime is allocated when increased production is required. When overtime funds are allocated to a program, overtime is offered to all employees in that program. There is no capacity to move overtime funding from one program to another.

43        At the time the events occurred that gave rise to the grievances, Mr. Mapplebeck did not consider TLs from other sections for overtime in the Accounts Receivable program because they would not have had the then-current level of experience required to perform the duties, even though the TLs in a specific program line would be assigned overtime in a different program line if a TL from that line were not available. This was done to avoid cancelling scheduled overtime. The employer has since reconsidered this as a TL from another section would not be doing the full range of duties of a TL assigned to that section. This increases program workload for TLs assigned to the section on their regular shifts as they are required to review files completed on overtime.

44        During the period covered by the grievances, Mr. Mapplebeck discussed overtime with the grievors on a couple of occasions at team meetings, which were intended as an opportunity to provide the TLs with an update of what had occurred at the weekly senior management meetings Mr. Mapplebeck attended. The initial question he was asked was when overtime would be allocated to the Trust and Employer Compliance Audit sections. In September, overtime was allocated specifically for Accounts Receivable as none was required in the Trust section.

45        Mr. Mapplebeck mentioned to Mr. Harder that the grievors were inquiring about overtime and that they were ready, willing, and able to work it if funding was available. Mr. Harder told him that he had met with the grievors about it in April and May 2011 but did not provide him any details. Mr. Mapplebeck was aware that all the grievors wanted to work overtime, but he assumed that they were interested only in working overtime in the Trust section, which he had learned from Mr. Harder.

III. Summary of the arguments

A. For the grievors

46        Mr. Harder conceded that the employer made no effort to distribute overtime to the grievors during the period in question. Ms. Moore admitted that the grievors were qualified to work overtime in Accounts Receivable. Even so, all four grievors were deemed not qualified to work overtime by Mr. Harder, who was of the view that they were qualified only if they were currently in the job. The new Board and its predecessors have rejected that argument for more than 30 years.

47        Mr. Dewit testified that before 2009, TLs were assigned overtime in a variety of sections and were not limited to overtime in their own areas but that it changed with Mr. Harder’s arrival in 2010. Mr. Mapplebeck said he could not recall this, but Mr. Dewit was more credible. Mr. Mapplebeck frequently failed to respond to questions, answering that he could not recall anything.

48        Mr. Grey retired in 2013 after being a TL for 20 years. He worked many overtime shifts as a TL in a number of sections. He described the primary function of a TL on an overtime shift as that of a timekeeper who ensures that people are working and to make his or her presence known. No performance management is done on an overtime shift. In addition, the TL performs his or her regularly assigned tasks. His testimony clearly established a difference between TL work on an overtime shift and on a regular shift, which lends credence to the assertion that a TL could go into another section on an overtime shift without difficulty.

49        In 2011, when overtime was available in Trust Compliance, Mr. Mapplebeck allowed Mr. Dewit and Mr. Saunders to work that overtime even though they did not work there. All the grievors transferred to Accounts Receivable without being assessed, so the employer could not claim that they were not qualified for overtime in Accounts Receivable. Conversely, it could not argue that Mr. Dewit was not qualified for overtime in Trust Exam when he had left it within six months of the overtime shifts becoming available. The employer’s view that the grievors were not qualified unless they were already in the job for which overtime was available did not take into account experience they might have gained elsewhere, even though the employer rotated the TLs through different sections and program lines annually.

50        Mr. Peterson testified that on the overtime shifts he worked, he was responsible for making sure that those working overtime took their breaks when they were supposed to and for providing them with swipe card access, regardless of their team. He attended and took notes of meetings at which the grievors specifically asked to work overtime in Accounts Receivable (Exhibit 5). Even if these notes do not specifically refer to overtime in Accounts Receivable, the grievors clearly requested overtime; it was available in Accounts Receivable, and it should have been made available to them.

51        This contradicts Mr. Mapplebeck’s testimony that he found out about the overtime request only from Mr. Harder. Mr. Dunbar testified that Mr. Mapplebeck agreed at the meeting that he would look into the overtime request. Mr. Saunders was vocal in requesting overtime at every meeting, no matter where it was available. He was parachuted into Trust Compliance from Employer Compliance Audit for overtime shifts, but it would have been easier for him to work overtime in Accounts Receivable, where he had experience. Clearly, he made that request.

52        Ms. Moore testified that she was not sure what TLs do on overtime shifts. Mr. Harder said the same thing. The best evidence of what occurs on an overtime shift came from the grievors and Mr. Grey. The constant need to stay current is accomplished by reading, which can be done anywhere and anytime as long as Internet access is available, including on an overtime shift.

53        Mr. Mapplebeck told Mr. Harder that his TLs were ready, willing, and able to work overtime, yet none was offered. Mr. Mapplebeck testified that overtime was distributed equitably in the work unit. That is not what article 28 of the collective agreement states. The jurisprudence states that language is to be interpreted as it is. Nothing can be imported into the language to suit a purpose. The employer’s position is one of convenience. TLs will be moved when it is convenient to the employer, but when it does not wish to move them, they are not moved. When it does not move TLs or when it is inconvenient to move them, the employer states that they are not qualified. All TLs have the same job description with the same qualifications. It is no defence to state that it is generic. The issues are determining who is qualified to work overtime and denying the opportunity to work it.

54        Clause 28.05(a) of the collective agreement states that subject to operational requirements, overtime is to be distributed on an equitable basis among readily available qualified employees. Those are the employer’s and not Accounts Receivable’s operational requirements. The employer is required to make every reasonable effort to distribute overtime on an equitable basis, yet Mr. Harder made no effort to. The employer conceded that it made no effort to distribute overtime to the grievors. It also conceded that the grievors were qualified to do the work.

55        When determining operational requirements, the employer must not act in an arbitrary or discriminatory fashion or in bad faith (see Zelisko and Audia v. Treasury Board (Citizenship and Immigration Canada), 2003 PSSRB 67 at para. 161). The employer’s argument was arbitrary that Accounts Receivable’s operational requirements preclude assigning overtime to qualified employees from the same division but a different program line when all are equally qualified to do the work. Even if the grievors were not fully trained to work in Accounts Receivable as TLs, the failure to train them to the degree required, which resulted in denying them overtime, was a violation of the employer’s obligation to make every reasonable effort to allocate overtime on an equitable basis. By itself, that was unreasonable (see Bunyan et. al. v. Treasury Board (Department of Human Resources and Skills Development), 2007 PSLRB 85 at para. 91).

56        That argument is moot as the employer conceded that the grievors were all qualified to work as TLs. Mr. Harder’s position was that the grievors were not qualified for the overtime as they were not in Accounts Receivable positions, not that they were not qualified to be TLs. His opinion was that to be qualified to do the job, one must be in the job. The new Board and its predecessors have rejected that argument (see Bretzel v. Treasury Board (Employment and Immigration), PSSRB File Nos. 166-02-10385 to 10387 (19820218) at 6; Conrad v. Treasury Board (Environment Canada), PSSRB File No. 166-02-13056 (19821223) at 8; Johnston v. Treasury Board (Employment and Immigration), PSSRB File Nos. 166-02-17488 to 17490 (19880930) at 16; Casper v. Treasury Board (Department of Citizenship and Immigration), 2011 PSLRB 27, and Public Service Alliance of Canada v. Treasury Board (Department of Employment and Social Development), 2014 PSLRB 11 at para. 53.

57        The employer violated the collective agreement. There were no operational requirements that prevented offering overtime to the grievors. The employer made no effort to offer overtime on an equitable basis. The grievors were qualified, requested to work overtime, and were denied, contrary to the provisions of the collective agreement. They are entitled to payment in kind, pursuant to the decisions in Bunyan and Zelisko. The matter should be remitted to the parties to determine the quantum of the award, and the new Board should remain seized of the matter until the award has been implemented.

B. For the employer

58        The question to be answered is whether the employer violated clause 28.05 of the collective agreement by failing to offer overtime to the grievors. They did not prove that overtime was not distributed on an equitable basis. Article 28 has many elements that must be assessed: operational requirements, availability, qualifications, and equitability.

59        The employer funded overtime in a specific section, and eligibility for that overtime is the crux of the question, which is specifically whether the grievors were qualified, and the employer determined that they were not. Between December 2010 and March 2011, the grievors worked in Trust Exam, with the exception of Mr. Saunders, who worked in Employer Compliance Audit. Overtime was offered to those who were qualified to work in Accounts Receivable, where the overtime was funded. The grievors were not qualified to work there and therefore were not offered the overtime.

60        Among the TLs’ responsibilities on an overtime shift is the duty to ensure that the section meets its obligations. The employer funds overtime to ensure that a section meets its annual targets. TLs from another section are not fully qualified to fulfill the full range of responsibilities of a TL in Accounts Receivable, so operational requirements required the employer to limit overtime to the TLs from the section where it was approved to meet targets. The operational requirements considered included the cost, workforce location, safety, supervision, special projects, and client demands.

61        Operational requirements must be assessed on a case-by-case basis and may vary by location (see Jenks v. Canada Revenue Agency, 2010 PSLRB 27 at para. 112). The employer submitted that they may also vary by department or division depending on the workload, the workforce, the purpose, the goals, and the priorities. All are unique and greatly affect the operational requirements in a program. Since the goals vary from program to program, the decision to fund overtime must depend on the program needs, the funding available, whether program expectations are being met, and the employer’s priorities. When assessing the need for overtime, the employer must be convinced that it will improve the section’s performance, according to Mr. Harder.

62        Employees are not entitled to overtime (see Doherty and Hawkes v. Treasury Board (Department of National Defence), 2014 PSLRB 77 at para. 30). Section 7 of the Act states that the employer has the prerogative to manage the workload, which includes the right to determine when and if overtime will be available, which clause 6.01 of the collective agreement recognizes. The new Board has no jurisdiction if there is no underlying violation of the collective agreement. The employer has broad discretion to assess overtime and determine who is qualified to work it. The employer’s evidence was uncontradicted that overtime was based on the operational requirements of the section; therefore, there was no discrimination. The employer’s priorities were defined (Exhibit 2) as meeting the targets in the Accounts Receivable section. At the same time, the Trust section was meeting its targets, and there was no need for overtime in the Trust Exam section. When overtime became available in Trust Compliance, the grievors were offered it.

63        The evidence of the witnesses did not support the assertion that TLs have worked overtime in other sections, contrary to what the grievors argued. Mr. Grey had never worked overtime in a different section in his career. Mr. Mapplebeck testified that he had never worked overtime in another section. Mr. Dewit testified that he could work overtime in another section before Mr. Harder arrived. All the employer’s witnesses testified that there were differences between sections and business lines and that the level of expertise that each one requires is found only within that unit. TLs are qualified to work only within their own business lines. They monitor their specific program, which requires extensive knowledge of the priorities, policies, procedures, and employees of that program.

64        It is misleading to conclude that because the employer uses a generic job description, all TLs are qualified for all business lines. Each section requires its own technical knowledge. The daily duties require extensive subject matter expertise and knowledge of the employees. TLs on overtime carry out their own duties as well as supervise those on shift. TLs are not babysitters. They provide advice and coaching to staff and are required to be the most skilled in the subject area. Keeping current with changes requires a fair amount of regular reading. There is no time on an overtime shift for TLs to search for information on the intranet. It is impossible for a TL to be trained on all sections, and according to Mr. Harder, it would be too time consuming. The structure of the division reflects the programs’ specializations (see Brisebois v. Treasury Board (Department of National Defence), 2011 PSLRB 18 at para. 40).

65        The grievors’ reading of clause 28.05 poses a new requirement on the employer to train TLs to be qualified to work overtime in other sections. It would be inequitable to the TLs in the grievors’ home section to allow them to work in a section in which they had previously worked.

66        The grievors provided no evidence of their availability. They testified that they brought it to Mr. Mapplebeck’s attention, and he testified that it happened only a couple of times and only in the context of why there was no overtime available in Trust Exam. According to him, the grievors never expressed a desire to work overtime in Accounts Receivable. The minutes of the TL meeting (Exhibit 9) support Mr. Mapplebeck’s recollection of the facts. There is no reference to the grievors’ availability to work overtime in another section. Mr. Harder never heard of this from Mr. Mapplebeck. Availability for overtime must be clearly communicated to the employer.

67        The cases cited by the grievors each differ from this one on the facts and should not apply. The employer demonstrated that specialized knowledge is required to work in a given area, which is evidenced by the job description and the testimonies of Ms. Moore and Mr. Mapplebeck.

68        If it is determined that the grievors were qualified for overtime in other sections, then the adjudicator’s role is to assess equitability (see Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board, 2010 PSLRB 85 at para. 47). To do that, a three-step test is required that examines a reasonable period, the hours allocated to those grieving and to others similarly situated, and the factors that explain the discrepancy (see Attorney General of Canada v. Bucholtz, 2011 FC 1259 at para. 52, and Roireau and Gamache v. Treasury Board (Solicitor General Canada - Correctional Service), 2004 PSSRB 85 at para. 136). There is no evidence of the number of hours the TLs worked in other sections, and the grievors did not address the issue of similarly situated employees.

69        The employer also asserts that this Board is without jurisdiction to hear this matter as the assignment of overtime falls within the management rights provision of the collective agreement. Assignment of duties, including overtime, is a management right which is not subject to review.

70        Notwithstanding that this Board is without jurisdiction, the grievors did not meet their burden of demonstrating that they were available and qualified to do the work for which they claimed overtime.

IV. Reasons

71        The grievors all worked in the division, which includes the Non-filer, Accounts Receivable, and Trust sections. The Trust section is further divided into three subsections: Trust Exam, Employer Compliance Audit, and Trust Compliance. All the grievors worked at some point in both the Accounts Receivable and Trust sections. They were all TLs, and they shared the same generic job description with all other TLs no matter where they were located in the employer’s organization.

72        Clause 28.05(a) of the collective agreement states as follows:

28.05 Assignment of Overtime Work

(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.

73        Qualifications are one of the criteria used when determining the equitable distribution of overtime. If I am to accept the employer’s argument, the grievors were not qualified to work overtime in the Accounts Receivable section. They challenged the employer’s change in 2010 with Mr. Harder’s arrival, which was that they were no longer qualified to work overtime in the Accounts Receivable section, where it was available. While the employer denied that there had been such a change, it provided no evidence to support their contention. In the absence of this evidence, I accept the grievors claims that with the arrival of Mr. Harder the method of distributing overtime changed. Unlike in Brisebois, this is not a case of grievors of different classification levels seeking overtime at another level.

74        The employer has used a generic job description to facilitate moving TLs across business lines and within the organization for organizational needs and for developmental purposes as it deemed fit. TLs are not evaluated as they move from one team to another nor do they get any additional training when they are moved. The employer has chosen to create one job description and classification level for a TL, which all program and business lines use for positions at that level. I find that the employer has not successfully refuted the grievors’ evidence to the effect that they are qualified as TLs to work in all sections.

75        The undisputed evidence of those who have actually worked the overtime at issue is that they were previously entitled to work overtime at the Calgary TSO within their division but outside their sections. Clearly, they are all qualified for TL work, or why else would they have been place in TL positions regardless of which section they work in? I find that if an employee is qualified to do the work during the day, he or she is qualified to do it on an overtime shift (see Johnston, at para 18). Furthermore, since all the grievors had previously done exactly the job for which the overtime was available immediately before accepting an assignment in their home sections, they were qualified to do the work in both sections. The fact that a TL may need to verify the most current processes in use by the employer in a section does not amount to requiring training.

76        It was disingenuous of the employer to claim that the grievors were not qualified to work in Accounts Receivable when they had been previously been employed by the same employer for that specific purpose. It was equally disingenuous for it to argue that I should put no emphasis on the fact that it uses a generic job description. I reject this suggestion and do in fact put considerable weight on the fact that it has used a generic job description to staff positions in the different business lines within the division. One of the purposes of a generic job description is to allow the employer flexibility and consistency in staffing positions of a similar nature; and did not convince me that each position is so specialized as to exclude others qualified at the same level within the same division. Furthermore, the employer’s actions before Mr. Harder arrived, as the grievors and Mr. Grey explained, as well as the fact that in 2011 Mr. Saunders was offered overtime in a business line in which he had had no previous experience indicated that the employer did not in fact consider each position so specialized as to exclude others qualified at the same level within the division. The employer could not claim that the grievors were qualified when it suited its purposes and then claim they were not qualified when it did not suit its purposes.

77        If the employer was truly concerned with one program line meeting its targets, one would expect that it would have taken advantage of other qualified TLs to increase the likelihood of successfully meeting this goal by increasing the number of people available to work overtime rather than insisting that the only ones qualified to work it were those currently assigned to that program line (the Accounts Receivable section in this case).

78        In my opinion, for the employer to be successful in this interpretation, the collective agreement must specify that to be qualified to work overtime, the employee must be currently assigned to the unit where the overtime is available, either directly or by interpretation. The current language does not make overtime distribution subject to any such restriction, and nowhere could I find a provision that would lend itself to the employer’s interpretation that overtime should have been distributed in the fashion adopted by Mr. Harder in 2010 without an amendment to the language of the collective agreement, which I am prohibited from doing by section 229 of the Act.

79        Having concluded that the grievors were qualified, the question becomes whether they had communicated their availability. Their pursuit of the right to work overtime in Accounts Receivable was documented in the meeting minutes (Exhibits 5 and 9). Furthermore, each grievor testified in detail about his interactions with Mr. Mapplebeck and Mr. Harder on the matter. Mr. Mapplebeck, on the other hand, remembered very little, and his answers were frequently unresponsive. When he stated that he was unaware that the grievors were seeking the opportunity to work overtime in Accounts Receivable, I find that he had little or no credibility as the evidence of all the grievors and Mr. Harder indicated that he did in fact know that the grievors were seeking overtime opportunities wherever available in their division. Thus, the grievors have met the second obstacle to working overtime within their division.

80        The grievors have demonstrated that the employer did arbitrarily deny the grievors the right to work overtime. By applying an interpretation of whether the grievors were qualified, which could not be supported by the collective agreement and was inconsistent with its previous act of allowing TLs to work overtime in other sections and subsequent actions in distributing overtime to Mr. Saunders and Mr. Dewit in an area where they had no experience, the employer in fact acted arbitrarily in its distribution of overtime.

81        The Gage Canadian Dictionary defines “arbitrary” as being “determined by caprice or whim or done at random without reason”. The employer’s actions in this situation were by definition arbitrary. Through its arbitrariness, the employer denied the grievors the opportunity to work overtime they had requested and, but for the employer’s actions, would have been entitled to under the collective agreement. Clearly based on the grievors’ evidence that they received no hours of overtime in Accounts Receivable despite having made it clear to the employer that they were available to work overtime in Accounts Receivable, and that overtime was not available in their own sections before February 2011, which I accept, the employer has not equitably distributed the overtime hours among those qualified and available for the overtime shifts.

82        The employer’s argument that the new Board has no jurisdiction in this matter as it acted within its management rights is likewise without merit. The new Board has jurisdiction over violations of the collective agreement committed by the employer in the pursuit of operational requirements and management rights where it can be shown that the employer has acted arbitrarily.By acting arbitrarily in determining to whom overtime would be offered, and in light of the minimal number of hours of overtime worked by the grievors in the Trust Section, the employer has violated the overtime provisions of the collective agreement. Furthermore, if the employer was truly concerned about the operational requirements, they should have based their decision on the operational requirements and not solely on the qualifications of the grievors.

83        For all these reasons, and based on this fact situation as each claim must be decided on the basis of its own facts and the operational requirements of the employer’s organization, I will allow each grievance. The grievors’ representative asked that the grievors’ be compensated monetarily for their losses as a result of the employer’s violation of the collective agreement and that the matter be remitted to the parties for them to determine what that payment should be. I agree with this approach and I will leave it to the parties to determine the appropriate payment to be made to the grievors. I will remain seized of the matter for a time in the event that they cannot conclude an agreement on what is owed to the grievors.

84        For all of the above reasons, the Board makes the following order:

V. Order

85        The grievance in PSLREB File No. 566-34-7007 is allowed.

86        The grievance in PSLREB File No. 566-34-7008 is allowed.

87        The grievance in PSLREB File No. 566-34-7009 is allowed.

88        The grievance in PSLREB File No. 566-34-7010 is allowed.

89        The grievance in PSLREB File No. 566-34-9283 is allowed.

90        The matter is remitted to the parties to determine the payments due to each grievor as a result of the employer’s failure to comply with the collective agreement between September 29, 2010 and March 31, 2011.

91        I will retain jurisdiction over this matter for a period of 120 days from the date of this decision to deal with matters arising from the question of the remedy to be determined by the parties and the implementation of that remedy or if the parties are unable to determine a mutually agreeable remedy.

May 6, 2016.