Date: 20220728

Files: 566-02-40777 to 40782 and 42152 to 42166

 

Citation: 2022 FPSLREB 63

Federal Public Sector Labour Relations and Employment Board Act and Federal Public Sector Labour Relations Act

Before a panel of the Federal Public Sector Labour Relations and Employment Board

Between

 

Marcel Beaudoin, ELIZABETH MCKAY ANDREWS, STEVEN TUPPER, GUILLAUME WHITE-ROLLAND, ANNE-MARIE GARAND-SHERIDAN, DONALD LEFEBVRE, REESE ADENEY, THAM THI PHAM, JIM MARTYN, ALESSANDRA MEZZETTI, REBECCA GARDNER, AMY WESTGATE, ADRIAN CHITIU, SAJITH BANDARANAYAKE, JAMIE LYNN HAYAMI, JESSE MCDANIEL, HOWARD SANDLER, KRISTY HYAM, KALIE KATHERINE GOSSEN, NICOLE HARRIS, AND ISABELLE GAGNÉ

Grievors

 

and

 

Treasury Board

(DEPARTMENT of Industry)

 

Employer

Indexed as

Beaudoin v. Treasury Board (Department of Industry)

In the matter of individual grievances referred to adjudication

Before: Joanne B. Archibald, a panel of the Federal Public Sector Labour Relations and Employment Board

For the Grievors: Christopher Olutola and Alexandra Hobson

For the Employer: Philippe Giguère

Heard by videoconference,

March 14 to 18, 2022.

REASONS FOR DECISION

I. Individual grievances referred to adjudication

[1] Twenty-one grievances were filed by Marcel Beaudoin, Elizabeth McKay Andrews, Steven Tupper, Guillaume White-Rolland, Anne-Marie Garand-Sheridan, Donald Lefebvre, Reese Adeney, Tham Thi Pham, Jim Martyn, Alessandra Mezzetti, Rebecca Gardner, Amy Westgate, Adrian Chitiu, Sajith Bandaranayake, Jamie Lynn Hayami, Jesse McDaniel, Howard Sandler, Kristy Hyam, Kalie Katherine Gossen, Nicole Harris, and Isabelle Gagné. They are employed at Innovation, Science and Economic Development Canada (Department of Industry) as patent examiners classified SG-PAT-04 in the Canadian Intellectual Property Office (“CIPO” or “the employer”), a separate operating agency.

[2] At the relevant time, their terms and conditions of employment were partly governed by a collective agreement between the employer and the Professional Institute of the Public Service of Canada (“the bargaining agent”) for the Applied Sciences and Patent Examination Group that was effective on May 15, 2017, and that expired on September 30, 2018 (“the collective agreement”).

[3] The grievors alleged that the employer refused to provide two 15-minute paid rest periods during each working day of 7.5 hours, in accordance with clause 8.01 of the collective agreement. Further, they alleged that they were threatened with discipline if they took the rest periods.

[4] The hearing was bifurcated to allow rendering a decision on the merits that was to be followed by a hearing on the remedy, depending on the outcome of the decision.

[5] For the reasons that follow, the grievors have a right to paid rest periods. However, there is no evidence that the employer refused to provide them. No hearing on the remedy is required as the evidence does not support the grievors’ contention that the employer refused to provide two daily 15-minute paid rest periods, as required.

II. The agreed statement of facts

[6] Clause 8.01 of the collective agreement defines the workweek and workday. It includes the following provision for paid rest periods during a workday (“the paid rest periods”):

 

[7] The grievors enter their daily activities in the Activity Time Reporting System (“ATRS”). The ATRS entries are submitted to their supervisors for approval.

[8] On May 26, 2017, Agnès Lajoie, then the director general and the assistant commissioner of patents at CIPO, wrote to employees under the heading, “Key points regarding breaks in the SG-PAT collective agreement”, stating this in part:

...

One point that has been raised is the inclusion of a reality that was already present in the workplace at CIPO: breaks.

Management has already received some questions about the effect this inclusion will have on the daily work of patent examiners. The answer is simple: the text merely codifies a custom, a practice, which was already in place and which had been taken into consideration in the management of the patent examiners [sic] activities and priorities. Therefore, this amendment to the text of the agreement, as compared to the previous collective agreement, does not result in changes in work.

I would also like to mention that although the collective agreement specifies two 15-minute breaks, we will continue to be flexible in how employees use these breaks based on their needs and well-being.

I am confident that our professional and flexible work environment meets the needs of Patent Branch employees and I encourage dialogue with your supervisors. Don’t hesitate to communicate with your section head or your director if you have questions.

...

 

[9] On July 25, 2017, a policy grievance was filed. It alleged that the employer was denying SG-PAT employees at CIPO the paid rest breaks, in contravention of clause 8.01 of the collective agreement.

[10] On July 5, 2018, the Treasury Board of Canada Secretariat denied the grievance at the final level, adding the following comments:

...

After review of your submissions, I find that there was no contravention of the collective agreement. However, I agree that, from a practical perspective, going forward there could be a distinction made and recognized between rest periods and production activities as defined by CIPO to avoid misinterpretation of the collective agreement.

...

 

[11] The final-level reply stated that production goals could not be part of a policy agreement as they were not part of the collective agreement. It also added this:

...

... Deputy Heads have the authority to manage their human resources and the establishment of these production standards is not part of the collective agreement. Therefore, this issue cannot be subject to a policy grievance under s. 220 of the Federal Public Sector Labour Relations Act.

...

 

[12] The policy grievance was referred to adjudication and was later withdrawn.

[13] The bargaining agent selected three grievors to provide evidence before the Federal Public Sector Labour Relations and Employment Board (“the Board”) on the basis that their circumstances were representative of the remaining grievors. They submitted that the employer denied them the two 15-minute paid rest periods defined in clause 8.01 of the collective agreement. They asserted that there was no earlier practice of providing a paid rest period and that it was a new, negotiated benefit flowing from the collective agreement. Further, they alleged that they were threatened with discipline for attempting to give effect to the new benefit.

III. Summary of the evidence

[14] Three witnesses, Donald Lefebvre (“grievor 1”), Anne-Marie Garand-Sheridan (“grievor 2”), and Guillaume White-Rolland (“grievor 3”), testified on behalf of the grievors and indicated their experience as they endeavoured to enforce clause 8.01 of the collective agreement.

A. Grievor 1

[15] Grievor 1 testified that he has been a patent examiner for 21 years. He has teleworked from his residence since 2008, initially on a pilot project, and then permanently from 2010 onward. He does not perform his work at a CIPO workplace. Although his work hours are flexible, he is required to be present during core hours. His job duties are based on production goals that are established in his annual performance appraisal.

[16] Grievor 1 testified that patent examiners record their time in the ATRS. He views it as a tool that logs every minute he spends carrying out patent examinations. His performance evaluation flows from his ATRS entries and whether they reflect that he has met his production goals. Granting employees privileges, such as working from home, attending training, or participating in conferences, is influenced by them accomplishing their production goals.

[17] In grievor 1’s opinion, as the production goals were based on 7.5 hours of productive time per day and did not take into account paid rest periods, there was a risk that employees could not accomplish their production targets if they took the paid rest periods. He felt that employees could be improperly motivated to work through their paid rest periods as a result, which was the basis of his grievance.

[18] Grievor 1 agreed that he consistently met or exceeded his production goals, before and after the collective agreement was implemented.

[19] Grievor 1 referred to Ms. Lajoie’s May 26, 2017, email. He denied that paid rest periods were part of the reality of CIPO’s culture before the new collective agreement, but he acknowledged the flexibility to which she referred.

[20] Grievor 1 testified that after the collective agreement was implemented, and before a new code was added, he decided to record paid rest periods in the ATRS by using code C999. In response, his section head, Tara Derickx, sent him this email on August 21, 2017:

...

[Translation]

Further to our talk this morning, the time entered in the ATRS under the code “C999: other miscellaneous” for breaks is denied. As indicated earlier, the policy is to take breaks during the 7.5 hours of work (or per a flexible work arrangement) and, consequently, the time reported in the ATRS has not changed. All time spent on activities ... of the system, such as breaks for personal activities, is absorbed into the main activity of the day, and the total hours declared for a week must be 37.5 hours (or per a flexible work arrangement).

...

 

[21] Grievor 1 stated that his reaction to the email was that he had to “obey”. While the section head did not tell him that he could not take the paid rest periods, in his view, if he could not code them as C999 and had to use the main activity, then in his opinion, the paid rest periods were refused. He had no alternative but to work 7.5 hours, without any paid rest periods.

[22] He did not seek clarification of his understanding.

[23] Grievor 1 testified that he continued to work through his paid rest periods. He felt that if he took a break, he would have to compensate the employer for that time. However, he formed the opinion that because his paid rest periods were denied, he would work 7.5 hours daily, without any paid rest periods.

[24] Therefore, he reasoned that he was actually working 0.5 hours of overtime daily and that he ought to be compensated for it. He stated that typically, overtime was preauthorized, and that it was used to clear backlogged work. Grievor 1 agreed that he never sought or obtained authorization to work overtime.

[25] In his grievance, grievor 1 referred to receiving discipline threats from his section head. He stated that he felt that consequences were threatened if he did not obey the August 21, 2017, direction or if he continued to record his paid rest periods under the ATRS under code C999. Disciplinary action could have put at risk his privileges of working from home, attending training, and participating in conferences.

[26] Grievor 1 also referred to the policy grievance concerning paid rest periods that followed the collective agreement’s implementation. According to him, CIPO and the bargaining agent then entered a negotiation, in which he and others participated. At the conclusion, the parties agreed to add a new time code for paid rest periods to the ATRS and to adjust the production targets to account for 7 hours of productive time in each 7.5-hour working day.

[27] Paid rest periods were also referred to in a communiqué to employees on September 8, 2017, which repeated the commitment of CIPO’s management to honouring the collective agreement. It stated that the provision of paid rest periods within the 7.5-hour working day was a long-standing practice.

[28] Grievor 1, as did grievors 2 and 3, denied that there was a long-standing practice of taking paid rest periods. He testified that before the collective agreement, no one told him that he could have a paid break.

[29] The section head for grievor 1 testified that she supervised 11 to 13 employees, all of whom worked to achieve the established production targets.

[30] The patent examiners recorded their time by coding it in the ATRS. She approved it. The employees are professionals, and the workplace was flexible. They performed their work and took breaks as they wished. She did not monitor break times and had no knowledge of grievor 1 working through his paid rest periods.

[31] The section head testified that after the collective agreement of 2017 was implemented, some employees started to record only seven hours per day in the ATRS, to reflect their time actually spent on production. She recalled that grievor 1 also recorded 0.5 hours per day as code C999.

[32] The section head testified that the collective agreement of 2017 positively states that employees are entitled to two paid rest periods per day. In the August 21, 2017, email, the section head was clear that she rejected grievor 1’s claims for time attributed to ATRS code C999 and that she directed him to include the time for his paid rest periods with the code for his principal activity for the day. In cross examination, she was asked whether there was a possibility of negative consequence such as discipline if grievor 1 disobeyed. She responded that this was a conversation. To suggest that it would end with discipline was “a little harsh.”

[33] The section head testified that when a patent examiner fell significantly behind production targets or the drop was sustained, the first step was to call the employee and ask how she could help. However, generally, patent examiners met their production targets.

B. Grievor 2

[34] Grievor 2 testified that she began working at CIPO as a patent examiner in 2010. She recounted her training and probationary experience before becoming a fully qualified patent examiner. She referred to the requirement to meet production goals.

[35] Grievor 2 testified that conferences and other privileges, including promotion, were based on meeting production goals. When her productivity fell behind, her section head, André Martin, would speak with her about improving. She provided examples from 2014, when her section head suggested that as her year-to-date productivity was falling, she could focus on amended applications to improve it. In 2015, he counselled her to be sure to record time off production when she was on another project.

[36] Grievor 2 testified that she first became aware of the entitlement to paid rest periods when the collective agreement was implemented. She knew that the ATRS recorded all an examiner’s time. When she started taking the rest periods, she accounted for them separately in the ATRS. Before that, she had a clear understanding that she had to account for 7.5 working hours per day.

[37] In April 2017, her section head held a section meeting. Grievor 2 understood that his message to employees meant that management would refuse paid rest periods. As grievor 2 felt that nonetheless, the collective agreement entitled her to the paid rest periods, she decided to complete the ATRS to reflect only seven hours per day of working time.

[38] According to grievor 2, the section head then approached her and told her that failing to record 7.5 hours per day in the ATRS was an act of insubordination. She refused to amend her entries until she received a written direction from him.

[39] On July 6, 2017, the section head wrote to grievor 2 to confirm that paid rest periods were to be absorbed in the main activity coded in the ATRS for a given day. The total hours recorded in the ATRS had to be 37.5 hours per week.

[40] On July 7, 2017, grievor 2 sought clarification from the section head. She asked for an explicit order to comply and indicated that absorbing the rest periods would negatively affect the accomplishment of her work activities.

[41] On July 12, 2017, the section head confirmed that the July 6, 2017, email constituted an order.

[42] Grievor 2 recognized that her productivity fell behind when she took paid rest periods. She calculated that up to that July 2017, she had taken 17.75 hours of breaks and decided to work that number of hours to make up that time and restore her productivity.

[43] After that, grievor 2 worked through the paid rest periods, to maintain her production. Entries in the ATRS show that she recorded her paid rest periods in the ATRS with the notation, “in lieu of rest periods”. She felt that the section head should have understood that this meant that she worked and did not rest during that time.

[44] Further, grievor 2 considered that directing her to absorb paid rest periods into her code for productive work made her accountable to produce work during that time. Otherwise, she felt that she would be misrepresenting her activity by taking a break during time that was recorded under a code for productive work.

[45] Grievor 2 returned to taking paid rest periods only after the policy grievance was decided, when she understood that CIPO was directed to create an ATRS code to distinguish rest periods from working, productive hours.

[46] Grievor 2 now considers that she ought to receive overtime pay for any time she worked through a paid rest break. At no time did she ask for overtime to account for the paid rest periods. She agreed that ordinarily, senior managers determined in advance the need to work overtime, and that generally, it was used to clear backlogged work.

[47] Grievor 2’s section head testified that he has supervised her since 2010. As the section head, his duties include managing employees and approving their ATRS entries. He explained that the ATRS accounts for a patent examiner’s time.

[48] The section head explained that before the new ATRS code was implemented in 2018, paid rest periods were included in the main activity of the day. Employees did not receive a separate code for ATRS purposes.

[49] The section head recalled a “lively” meeting with employees in May 2017, when the new collective agreement and paid rest periods were discussed. He testified that he did not have all the answers at that time. However, he remembered telling the staff to continue taking breaks as before.

[50] The section head recalled that grievor 2 then started to claim only seven hours of work time per day. In his email of July 6, 2017, he reminded her that the practice of recording 7.5 hours per day in the ATRS had not changed. Every day had to reflect 7.5 hours, and every week had to reflect a total of 37.5 hours. Paid rest periods were absorbed in the main activity of the day. The section head noted that although he directed grievor 2 to record her hours that way, at no time did he mention insubordination to her.

[51] Grievor 2 then began to record her time in the ATRS to include 0.5 hours daily coded to her main activity, with the notation, “in lieu of rest periods”. The section head thought it an odd way to enter breaks but that it was acceptable. He believed that it reflected grievor 2 taking the paid rest periods to which she was entitled. He recalled observing her in the workplace chatting with friends, getting water, or speaking with him about their recreational activities. This led him to believe that grievor 2 was taking breaks.

[52] The section head testified about the steps he would take when an employee fell behind on meeting production targets. An informal conversation would take place, to discuss where and how time was being spent on work activities. For example, a patent examiner might be spending too much time searching or could be losing judgment on what actions to take. In their discussion, they could make a plan, and the section head would later follow up with the employee. As an example of a strategy to improve production, he testified that patent examiners always have easier cases that can be taken care of quickly, to get them back on track.

[53] The section head did not specifically recall any such conversation with grievor 2 but added that he would have had such a conversation with any patent examiner who was falling behind. He agreed that if she had been falling behind, he might well have told her to take the necessary steps to bring her production into alignment with her production targets.

[54] The section head testified that he had no awareness of grievor 2 working 17.75 hours to bring her production up to standard and to make up for the paid rest periods she had taken.

[55] The section head recalled that during 2017 and 2018, all his team members met their goals. In grievor 2’s performance evaluation of 2017-2018, the section head commended her for achieving her production targets after falling behind.

[56] Concerning overtime, the section head testified that it was used to address a backlog or to ensure that CIPO met its service standards. In any event, it had to be preapproved at the director level. Overtime was not available to help a patent examiner meet his or her production targets.

C. Grievor 3

[57] Grievor 3 is senior patent examiner in CIPO’s chemistry division. He spoke of production goals, the increasing standardization of the patent process, and the administrative burden of the work he performed. He testified before the collective agreement was implemented, paid rest periods did not exist in his workplace.

[58] After its implementation, grievor 3 reduced his recorded productive time from 7.5 hours daily to 7 hours.

[59] On July 5, 2017, he received instructions from his section head, Isabelle Robert, on the manner of recording time in the ATRS. She wrote this:

...

[Translation]

Since June 5, the time you have entered into the ATRS for your workdays has been equal to only 7.0 hours per day. That time must equal your work hours; that is, 7.5 hours per day. STP makes the necessary corrections.

...

 

[60] When grievor 3 inquired further and insisted that the paid rest periods did not form part of his work, his section head reiterated that the time for paid rest periods should be absorbed in recording the main activity for the day in the ATRS, such that the recorded time equalled 7.5 hours per day or 37.5 hours per week.

[61] Grievor 3 then amended the ATRS record by adding a separate entry for paid rest periods, coded to correspond with his main activity. He believed that the section head must have understood that it meant that he worked through the breaks.

[62] Grievor 3 felt that production goals made it mathematically impossible for him to take rest periods. He was accountable for 7.5 hours of productive time per day, based on the required time to complete a specified action.

[63] He explained that if a patent examiner fails to meet production targets, he or she may not receive overtime, training, or project work. A supervisor then would come and speak with the examiner about improving and achieving the production goal.

[64] Therefore, according to grievor 3, because of the need to accomplish production goals, he required a full 7.5 hours daily, and he could not make an allowance for a rest break. He was pleased when a separate code was provided for paid rest periods and when that time was excluded in the ATRS from productive time.

[65] He now considers that he ought to receive overtime pay to account for the paid rest periods he worked before receiving the ATRS code. He acknowledged that he did not request overtime at the time.

[66] The section head testified that she supervised grievor 3 from the time of his hiring.

[67] The section head described the ATRS as a tool to track time and to code, for example, productive work, projects, training, or vacation leave. She testified that all time that is not given a specific code is recorded in the main activity of the day.

[68] The section head agreed that production targets were set for each patent examiner. In her experience, the great majority of patent examiners met those targets. A patent examiner could request additional time if warranted to complete a complex file. If a patent examiner fell behind, she might have discussed methods to gain time, such as adjusting time spent on specific activities like searches, and using shortcuts . In some cases, she referred employees to the Employee Assistance Program for help with personal issues.

[69] The section head testified that after the collective agreement was implemented, employees began recording their paid rest periods in the ATRS in many different ways.

[70] She recalled that grievor 3 began to record only seven hours per day, and he justified it by explaining that the employer used the ATRS to better understand work costs. He did not want to correct his time to 7.5 hours daily. She confirmed to him that a patent examiner was expected to record 7.5 hours per day in the ATRS. She reminded him that just as all paid leave was recorded, paid rest periods should be included.

[71] According to the ATRS record, grievor 3 then started recording his patent examination work in two parts daily, generally seven hours for his main patent examination activity and 0.5 hours using the same code but with the notation, “rest period”.

[72] The section head testified that she found the entries baffling. She discussed them with her manager, and they agreed that because the entries fulfilled the daily requirement for 7.5 hours, they would be approved as entered.

[73] The section head denied that she ever told grievor 3 or any employee not to take a paid rest break. Had she become aware that an employee was working through breaks or making up the time allotted to paid rest periods, she would have instructed the employee to stop doing so and to take the breaks.

[74] In cross-examination, the section head agreed that grievor 3 had a telework arrangement with CIPO and that one of the conditions of maintaining it was meeting his production targets. If a patent examiner failed to meet production targets for several months, then they would have an informal discussion, to determine the reasons and to make an improvement plan.

[75] Concerning overtime, the section head agreed that overtime was used for additional production, such as addressing a backlog, and not to meet regular production targets. For patent examiners to be selected for overtime, they had first to demonstrate that they were meeting their production targets. Overtime arose every few years. She added that at the relevant time, no overtime work was allotted to the section.

D. Virginie Ethier

[76] Ms. Ethier is the assistant commissioner and director general of patent (“the AC”) at CIPO.

[77] The AC testified that on December 19, 2018, after the policy grievance was denied and after consulting management and the bargaining agent, she issued an email to all employees, stating in part as follows:

...

... As there is no consensus within the examination community with respect to the historical access to paid breaks, a compromise was sought to clarify and move forward with a clear resolution to mitigate the possibility of further dispute.

Through respectful dialogue, it was agreed that a new ATRS code will be created to enter the 2x15 minute rest periods. Moving forward, the productive workday will be 7.0 hours and, in compliance with the collective agreement, the paid workday will be 7.5 hours. Therefore the rest periods (2 x 15 minutes) of each full working day are excluded from the examination/classification production time. Consequently, production goals will be adjusted to pull only the 7.0 hours of production instead of the current 7.5 hours....

...

 

[78] The AC stated that although the outcome of the policy grievance indicated no contravention of the collective agreement, the email’s intent was to reduce tension and implement the decision-maker’s suggestion to distinguish rest periods from productive time in the ATRS. Production targets were also adjusted, effective January 1, 2019.

IV. Summary of the arguments

A. For the grievors

[79] For the grievors, this is a simple matter of determining whether the employer violated the collective agreement clause at issue by refusing to provide employees with two paid 15-minute rest periods and whether those employees ought to be compensated for when they worked through those breaks.

[80] The collective agreement language placed a clear and positive duty on the employer to provide paid rest periods, but through its messaging, the employer indirectly denied employees that right. Breaks could be taken, but an employee would still be expected to meet production targets based on 7.5 hours of productive time per day. Employees remained accountable for a number of actions based on their recorded productive time in a production-based environment. In essence, by adhering to established production targets, the employer implicitly ignored the right to the paid rest periods and did not discourage employees who failed to take them. In effect, it undermined the collective agreement.

[81] Accordingly, employees who did not take paid rest periods unjustly enriched the employer.

[82] The employer did not take reasonable steps to ensure protection for the time allotted to paid rest periods until it provided a separate ATRS code for them.

B. For the employer

[83] The primary issue before the Board is whether the employer violated employees’ rights under clause 8.01 of the collective agreement by denying them their paid rest periods. The employer did not deny that the right exists and did not prohibit the grievors from taking those breaks.

[84] Creating a separate ATRS code to account for paid rest periods and establishing production targets remain management rights that are outside the scope of these grievances.

[85] The employer had no positive obligation to monitor employees to ensure that they took their breaks. The employees are professionals, and they had the flexibility to choose when to take their breaks. Had it been the parties’ intention to create a positive obligation on the employer, then the collective agreement would have said that the employer “shall ensure” paid rest breaks are taken rather than requiring that paid rest breaks “shall be provided.”

[86] The employer did not direct employees not to take breaks, and no cogent evidence was presented to suggest that it did. Rather, it told employees how to account for their paid rest periods in the ATRS. The employees were not pressured to work through their breaks.

V. Reasons

[87] The matter before the Board is whether the employer breached clause 8.01 of the collective agreement by prohibiting employees from taking or by failing to allow them to take two 15-minute paid rest periods in each 7.5-hour working day.

[88] The grievors also brought before the Board issues of production targets and the manner of recording time in the ATRS . However, these matters fall within management rights and squarely within article 5 of the collective agreement, which provides, “All the functions, rights, powers and authority which the Employer has not specifically abridged, delegated or modified by this Agreement are recognized by the Institute as being retained by the Employer.” These matters were not expressly addressed elsewhere in the collective agreement. As such, article 5 applies.

[89] Nor is this case about CIPO’s culture before the collective agreement of 2017 was implemented. It is clear that the parties hold divergent views of whether paid rest periods were incorporated into the workday before the collective agreement was implemented. Earlier collective agreements were produced. They do not mention paid rest breaks. Some training materials for patent examiners refer to them. In any event, its appears that there were different understandings of whether a right to paid rest breaks existed before the collective agreement of 2017 was implemented.

[90] I do not find it necessary to dwell on these materials to decide the matter before me. They do not bear on the question of whether the employer denied paid rest breaks after the collective agreement came into effect on May 15, 2017. All grievances were filed by the grievors in August 2017 in reference to actions of May 15, 2017 and ongoing. Accordingly, I have not repeated that evidence in this decision.

[91] The area of contention is the availability of paid rest breaks subsequent to the collective agreement of 2017 being implemented and, to a degree, the grievors’ view that time attributed in the ATRS to their main work activity must be productive time and cannot include paid rest periods.

[92] According to the grievors’ view, recording paid rest breaks by absorbing them in their ATRS main activity meant that they had to account for production throughout the 7.5 recorded hours, without any paid rest breaks. They suggested that as set out in Blue Line Taxi Co. v. R.W.D.S.U., 1992 CarswellOnt 1237 at para. 25, the employer undermined the provisions of clause 8.01 of the collective agreement by giving that direction.

[93] This view is juxtaposed with the employer’s consistent communication to employees to absorb the time spent on paid rest breaks in the ATRS code for their main activity. No evidence suggested that directly or indirectly, the employer sought to deny employees their contractual entitlement to paid rest periods or that it was aware of any employee working through paid rest breaks. The employer’s direction to employees pertained exclusively to the ATRS entries that had to equal 7.5 hours daily and 37.5 hours weekly.

[94] At no time did the employer insist that irrespective of the collective agreement, employees were accountable for 7.5 hours of productive time daily.

[95] An employee’s right to paid rest periods was acknowledged as early as Ms. Lajoie’s email to employees of May 26, 2017. The employees were directed to consult their section heads with any questions.

[96] Grievor 1, who acknowledged that he always met or exceeded his production targets, asserted that his section head refused his paid rest periods because she rejected the ATRS coding that he selected for them.

[97] The words that grievor 1’s section head used do not support the interpretation that he placed on them. A careful reading of her August 21, 2017, email shows that she refused to accept the ATRS coding he used and that she directed him to the correct coding. She told him to include the time allotted to the breaks in his main activity for the day.

[98] Reviewing the evidence, I find that at no point did grievor 1’s section head deny implicitly or explicitly his right to paid rest periods or threaten disciplinary action by refusing to accept ATRS coding that he used.

[99] After the collective agreement was implemented, grievor 2 began to record only seven hours per day, or 35 hours per week, in the ATRS. Her section head spoke to her and directed her to ensure that 7.5 hours daily, or 37.5 hours weekly, were recorded in the main activity.

[100] Grievor 2 felt unable to meet her production targets if 0.5 hours of paid rest periods were included in the 7.5 hours allotted daily to the main activity. She testified that she decided to make up the break time she had taken before receiving the direction. She also worked through her paid rest periods from that point onward. She felt that by recording 0.5 hours daily as “in lieu of rest periods” in the ATRS, she must have been notifying the employer that she was no longer taking the breaks.

[101] No evidence suggested that grievor 2 spoke to her section head about her inability to meet her production targets or that she sought guidance meeting them and overcoming any obstacles she might have encountered. Nor is there evidence that the employer suggested or promoted working through paid rest periods, to maintain production.

[102] I am unable to accept that the content of the ATRS notation reasonably suggests that grievor 2 did not take the breaks to which she was entitled. The phrase is, at best, equivocal. It is clear that it does not signal to the employer that an employee is eschewing paid rest periods in favour of work.

[103] Similarly, grievor 3 began recording seven hours daily after the collective agreement was implemented, until he was directed otherwise. Then he added a separate ATRS entry for his main activity, noting a “rest period” of 0.5 hours daily.

[104] A reasonable interpretation of this entry is that grievor 3 took 0.5 hours of paid rest breaks during his working day. In no way does the notation support his assertion that he the employer ought to have known he was working rather than resting during those times.

[105] The grievors referred to the Saskatchewan Labour Arbitration Board’s decision in Five Hills Health Region v. Health Sciences Association of Saskatchewan, [2016] S.L.A.A. No. 17 (QL; “Five Hills”). In that case, due to operational changes, employees no longer had sufficient time to complete their duties in the course of the normal workday. As a result, they worked through paid breaks, meal breaks, and after hours to complete their required duties. They claimed overtime for the extra hours. The employer in that case did not dispute the extra time worked and had observed employees working through breaks and after hours, but it relied on the absence of a preauthorization for overtime to defend the claims. The grievances were allowed.

[106] The facts of this case are distinguishable from Five Hills. There is no evidence that the employer in this case wilfully ignored or turned a blind eye to the question of paid rest periods and whether they were being taken. The evidence does not suggest that it knew or reasonably ought to have known that employees worked through their breaks. Indeed, the preponderance of the evidence showed that the employer repeatedly acknowledged the right to take the breaks and that it told employees how to account for them in the ATRS. The grievors elected to take their own course of action, despite the employer’s direction. On these facts, I do not find that Five Hills applies.

[107] Article 2.01 of the collective agreement defines “overtime” to mean “... work required by the Employer, to be performed by the employee in excess of the employee’s daily hours of work ...”. I reviewed the evidence with care, looking for a suggestion that employees were required to work through their paid rest breaks or evidence that the employer coerced or pressured them. I found no such evidence.

[108] While the grievors spoke of threats of discipline or insubordination charges if they did not comply with the direction, the supporting evidence was weak and, at best, contradictory. It did not meet the burden of proof on the balance of probabilities.

[109] For grievor 1, any discord was simply with respect to coding break time in the ATRS and not the denial of the right to paid breaks. He felt that he might face discipline but his evidence was unconvincing and does not meet the burden of proof. As such, I reject the notion that he faced discipline related to taking paid rest periods.

[110] Grievor 2 recalls being threatened by a discussion of insubordination with her section head, but he does not share that recollection of a conversation.

[111] The evidence shows that the direction given to grievor 2 was to code break time with her main daily activity, and there was no evidence that she was asked or told to forego her paid rest periods. I certainly acknowledge that a failure to comply with a direction properly given may indeed engender a finding of insubordination, but the evidence does not support a finding that grievor 2 and her section head discussed insubordination or that it was a consequence she faced for taking the paid rest breaks to which she was entitled.

[112] As to a loss of privileges, it is clear that underperforming employees could face a loss of telework, conference attendance, or access to overtime when it was available. Each grievor spoke of that possibility. However, none of them lost any privileges or was threatened with a loss. Again, their position is speculative and, in any case, relates to establishing production targets, which is a management right that does not form part of the collective agreement and does not discharge the burden of proof.

[113] Individually, the grievors stated that they worked through their breaks. In spite of the employer’s direction, they felt that they could not include paid break time in the ATRS code for productive work time or in grievor 2’s case because she felt that she could not maintain her productivity if she took breaks. The evidence is clear that in no case did any of the three grievors seek or receive direction to proceed as they did. I do not find the employer’s actions coercive. Rather, the grievors decided to chart their own courses and to work through their breaks, contradicting the employer’s direction and without authorization. On these facts, I would be unable to find the employer liable for overtime. (See Côté v. Treasury Board (Employment and Immigration Canada), PSSRB File No. 166-02-18529 (19890907), [1989] C.P.S.S.R.B. No. 240 (QL).)

[114] In reaching my decision to dismiss these grievances, I did not overlook the AC’s message of December 19, 2018, which was that through negotiation between the bargaining agent and the employer, a new code was added to the ATRS for paid rest breaks, and the time allotted to production was reduced to 7 hours daily. Both changes fall squarely within managing the workplace and not within the collective agreement. Moreover, while they relate to the concerns expressed in the policy grievance, this outcome was not directed by a decision on the policy grievance. This is clear from the final-level decision, in which the decision maker counselled the parties to find a solution while underscoring that these matters did not flow from the collective agreement.

[115] For all of the above reasons, the Board makes the following order:

(The Order appears on the next page)

VI. Order

[116] The grievances are denied.

July 28, 2022.

Joanne B. Archibald,

a panel of the Federal Public Sector

Labour Relations and Employment Board