FPSLREB Decisions
Decision Information
The grievor, a correctional officer employed as a shift worker, filed a grievance after the employer changed the start time of her shift to accommodate a mandatory training session, without providing the required 48 hours’ notice for a shift change. The bargaining agent contended that the change in start time of the grievor’s shift to attend the training was a shift change without proper notice, which entitled her to premium pay, while the employer argued that it was overtime compensation for the extra hours worked. When it considered together the principles of collective agreement interpretation and the jurisprudence, the Board found that directing the grievor to start her shift 1.75 hours earlier was an unapproved shift change, not an assignment of involuntary overtime, and thus required 48 hours’ notice. The Board determined that the employer breached the collective agreement. The Board ordered payment in cash at time-and-three-quarters for the hours of the full shift worked, minus the amount already paid at straight-time rates.
Grievance allowed.
Decision Content
Date: 20250311
File: 566-02-11109
Citation: 2025 FPSLREB 23
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Labour Relations Act |
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Between
Tammy Wilson
Grievor
and
(Correctional Service of Canada)
Employer
Indexed as
Wilson v. Treasury Board (Correctional Service of Canada)
In the matter of an individual grievance referred to adjudication
Before: David Jewitt, a panel of the Federal Public Sector Labour Relations and Employment Board
For the Grievor: Corinne Blanchette, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN
For the Employer: Elizabeth Matheson, counsel
REASONS FOR DECISION |
I. Introduction
[1] This case is about whether the Correctional Service of Canada’s (“the employer”) change of start time to the shift of Tammy Wilson (“the grievor”) on July 31, 2014, so that she could attend a mandatory three-hour in-class training session, was a shift change or an assignment of overtime under the provisions of the collective agreement between the Treasury Board and the Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN (“the bargaining agent”) for the Correctional Services group that expired on May 31, 2014 (“the collective agreement”). The grievance was filed on August 19, 2014.
[2] If the employer’s change of start time was a shift change, the grievor is entitled to a premium payment at the rate of time and three-quarters for all hours worked on that shift because the employer did not provide 48 hours’ notice of the change, as required by the collective agreement.
[3] If the employer’s direction was an assignment of overtime at the beginning of her shift, then she is owed no further premiums. The grievor was paid at the overtime rate for the extra 1.75 hours that she worked that day.
[4] Considering the context of the language of the collective agreement taken as a whole and read together with the relevant jurisprudence, I have found that the employer’s direction to the grievor on July 31, 2014, to advance the start time of her shift by 1.75 hours constitutes an unapproved shift change, not an assignment of overtime.
[5] On November 1, 2014, the Public Service Labour Relations and Employment Board Act (S.C. 2013, c. 40, s. 365; PSLREBA) was proclaimed into force (SI/2014-84), creating the Public Service Labour Relations and Employment Board (PSLREB) to replace the former Public Service Labour Relations Board (PSLRB) as well as the former Public Service Staffing Tribunal. On the same day, the consequential and transitional amendments in ss. 366 to 466 of the Economic Action Plan 2013 Act, No. 2 (S.C. 2013, c. 40; EAP2) also came into force (SI/2014-84). Under s. 393 of the EAP2, a proceeding commenced under the Public Service Labour Relations Act (S.C. 2003, c. 22, s. 2; PSLRA) before November 1, 2014, is to be taken up and continued under and in conformity with the PSLRA as it was amended by ss. 365 to 470 of the EAP2.
[6] On June 19, 2017, An Act to amend the Public Service Labour Relations Act, the Public Service Labour Relations and Employment Board Act and other Acts and to provide for certain other measures (S.C. 2017, c. 9) received Royal Assent, changing the name of the PSLREB and the titles of the PSLREBA and the PSLRA to, respectively, the Federal Public Sector Labour Relations and Employment Board (“the Board”), the Federal Public Sector Labour Relations and Employment Board Act, and the Federal Public Sector Labour Relations Act (FPSLRA).
II. Background
[7] The grievor is a correctional officer (CX-02) employed as a shift worker at the Mountain Institution, which is the employer’s medium-security federal institution located in Agassiz, British Columbia.
[8] When the grievance was filed, she worked a regularly scheduled 8.75-hour evening shift that started at 13:45 and ended at 22:30.
[9] On Wednesday, July 30, 2014, the grievor received an email from the employer that stated that the start time for a mandatory training session that she and some of her co-workers were registered to attend the next day, called Suicide and Self-Injury Prevention Training had been changed from 13:00 to 12:00. The following is a transcription of the e-mail with the names of the other Correctional Officers deleted:
Please note change in time.
A seat has been reserved for you on the following training session:
SUICIDE AND SELF-INJURY PREVENTION IN-CLASS
DATE: Thursday, July 31st
TIME:
1300- 16001200 – 1500
LOCATION: Mountain Institution, Staff Training Boardroom
INSTRUCTORS: Dr. H. Elise REEH
PARTICIPANTS: … TAMMY WILSON…
For correctional officers, your schedule has been adjusted through the CM(S&D). If the session ends prior to the completion of your shift, you will be required to contact the CM desk and you may be assigned to a post for the remainder of your shift. Also, you must bring your uniform with you in the event you have to return to work for any reason.
If you have any concerns or questions about this training please contact your institutional STC.
…
[Sic throughout]
[10] The grievor attended the training session on July 31 at the new start time of 12:00. After the training ended at 3:00 pm, she worked at her usual duties until the scheduled end of her shift at 22:30, for a total of 10.5 hours.
[11] At 16:13 on July 31, the grievor emailed Gwen Bradley, Correctional Manager, Scheduling and Deployment, to alert her about the change in time for her shift for pay purposes:
Gwen
My shift was adjusted for the participation in the below class without 48 hours notice. It is my understanding that I will be receiving time and three quarters for the entire shift today. The shift was now 10.5 hours making that be 18.375 hours. As per 21.03 (d) on the collective agreement.
Please mark me down for comp time for this.
…
[Sic throughout]
[12] Ms. Bradley responded the next day as follows:
Tammy,
Your shift was not adjusted or you would have gone home at 2045 hrs. You will be paid overtime from 1200 to 1345 which is the start time of your afternoon shift. I apologize that it wasn’t input yesterday however I was not included in the notification below and was not aware there had been any changes.
…
[13] The grievor replied to Ms. Bradley that same day as follows:
…
Gwen
I am reading the collective agreement and it states as follows:
21.02(b)(ii) to ensure an employee assigned to a regular shift cycle shall not be required to change his or her shift more than once during that shift cycle without his or her consent except as otherwise required by a penitentiary emergency. A change of shift followed by a return to the original shift is considered as one change;
21.03 (d) An employee whose regularly scheduled shift is changed, pursuant to subparagraph 21.02(b)(ii), without forty-eight (48) hours prior notice 34 shall be compensated at the rate of time and three-quarters (13/4) for the first (1st) full shift worked on the new schedule. Subsequent shifts worked on the new schedule shall be paid for at the straight-time.
My shift was changed to have me start at 1200 hours. I did not sign up for overtime nor was I offered overtime. I was only doing what I was told to do and that was to start at 1200 hours instead of my regular start time of 1345 hours. Whether I worked until 2045 hours or 2215 hours does not make any difference in the fact my start time changed. Therefore I am entitled to receive time and three-quarters for my entire shift.
Also due to it not getting entered properly and it being a new month I trust that it will still be credited for last month so that I do not have to wait 2 months before I can actually use it.’’
[Emphasis in the original]
[Sic throughout]
[14] These three emails succinctly set out both parties’ positions in this grievance. On the grievor’s behalf, the bargaining agent took the position that her regularly scheduled shift had been changed without 48 hours’ notice and that she was entitled to compensation at the rate of time and three-quarters for all hours worked on the shift, under clause 21.03(d) of the collective agreement.
[15] The employer took the position that the change to the start time was not a shift change but an assignment of 1.75 hours of overtime at the beginning of the shift, which is defined at clause 2.01(n) in the collective agreement as “… authorized work in excess of the employee’s scheduled hours of work …”. It paid the grievor 1.75 hours of overtime. The grievor filed this grievance on August 18, 2014, with her bargaining agent’s support.
III. The issue
[16] The issue in this case is whether the employer’s direction on July 30, requiring the grievor to change her start time on July 31 from 13:45 to 12:00 to accommodate a change to the start time of the training session was a shift change within the meaning of clause 21.03(d) or an assignment of 1.45 hours of overtime just before her shift’s scheduled start time.
[17] For the reasons outlined below, I have found that the employer’s direction on July 30, 2014, to advance the start time of the grievor’s shift by 1.75 hours to accommodate the last-minute change in the training schedule should be treated under the collective agreement as notice to the grievor of a shift change, not an assignment of mandatory overtime.
IV. The collective agreement
[18] The parties defined “overtime”, “shift”, “shift schedule”, and “shift cycle” in article 2 of the collective agreement as follows:
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[19] Article 21, titled “Hours of Work and Overtime”, sets out the parties’ agreement on how to schedule employees for day or shift work and how to manage or adjust shift schedules created jointly by their mutual agreement under the protocol negotiated in Appendix K of the collective agreement.
[20] For this grievance’s purposes, the relevant provisions regarding shift changes are set out in article 21, clauses 21.02(b), 21.03(d):
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[Emphasis added]
[21] The parties’ agreement regarding assigning overtime work is set out principally in clauses 21.10, 21.12, 21.13 and 21.14:
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[Emphasis added]
V. The parties’ positions
A. The bargaining agent’s position
[22] The bargaining agent argued that the circumstances of this case point clearly to the change of start time being a shift change, not overtime. In all cases involving a shift change, the grievor is entitled to receive notice 48 hours before the change. The parties negotiated that minimal amount of notice to support the overall purpose of the scheduling provisions in the collective agreement, which is a need for predictability and work-life balance. The bargaining agent submitted that 48 hours’ notice of such a change is not an onerous requirement for the employer to meet, especially in these circumstances, because the change was absolutely foreseeable. It was a change for prescheduled training and was not any kind of institutional emergency.
[23] The bargaining agent noted that originally the training was scheduled to begin at 1:00 pm and continue until 4:00 pm. This original timing for the training also was a change in the usual start time for the grievor’s shift. The grievor’s regular shift started at 1:45 but she was given 48 hours notice of the original change to 1:00 pm so if the training had proceeded at that time, there would be no issue under clause 21.03(d) and the employer would only be required to pay 45 minutes of overtime to the grievor, which was the time worked in excess of the regularly scheduled hours.
[24] However, that is not what happened. The day before the training was set to begin there was a last-minute change. The start and end times for the training were changed to 12:00 noon and 3:00 pm. This change required the grievor to now report to work at 12:00 noon rather than the previous direction of 1:00 pm or her usual start time at 1:45 pm. As the grievor was notified of this change less than 48 hours before having to report she became entitled to the penalty payment set out in clause 21.03(d) which reads “… shall be compensated at the rate of time and three quarters (1 3/4) for the first (1st) full shift worked on the new schedule”.
[25] The bargaining agent submitted that the purpose of clauses 21.02(b) and 21.03(d) when read together is to require the employer to make “… every reasonable effort … to ensure an employee assigned to a regular shift cycle shall not be required to change his or her shift more than once during that shift cycle without his or her consent …” and “… to avoid excessive fluctuations in hours of work …”. But when a change to the shift has to be made, and 48 hours’ notice of it is not given, then the employer has to pay a penalty or premium to the employee equal to time and three-quarters for the first full shift worked on the new schedule.
[26] The bargaining agent further submitted that the change in start time is more appropriately interpreted as a shift change and not an overtime assignment because the ordinary meaning of the word “shift” includes a start time, a duration, and an end time. In this case, the employer changed the shift’s start time and duration; therefore, the change should be considered a shift change, not overtime added to the grievor’s regular shift.
[27] The bargaining agent also referred to a labour relations bulletin from Human Resource Management that dealt with “Training guidelines” for short-term training (i.e., less than 8 days). Its following sections support the view that it was a shift change and that 48 hours’ notice of such a change was required:
…
· When the employer is changing a scheduled shift on a posted scheduled work day (e.g. changing an evening shift to a day shift) to accommodate short-term training, the employee will be advised of the change of shift at least 48 hours in advance. An employee who is not advised of the change of shift at least 48 hours in advance would be eligible for premiums pursuant to clause 21.03(d).
· When attending short-term training on a posted scheduled day of rest, the employee would be eligible for overtime premiums for every hour he/she is on training.
…
[Emphasis in the original]
[28] The bargaining agent also referred me to the following authorities, to support its position: Gérard Dion, Dictionnaire canadien des relations du travail, Presses de l’Université Laval, Québec, 2nd ed., Bylow v. Treasury Board (Correctional Service of Canada), 2014 PSLRB 78 (Bylow), Cooper v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 38, Munroe v. Treasury Board (Correctional Service of Canada), 2010 PSLRB 56, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada), 2011 PSLRB 120, Horner v. Treasury Board (Department of National Defence), 2012 PSLRB 33, Greater Victoria Hospital Society v. BCNU, 1996 CarswellBC 3443, Health Employers Assn. of British Columbia v. BCNU, 1998 CarswellBC 3112, Ontario Power Generation v. Society of United Professionals, 2019 CarswellOnt 22021, Union of Canadian Correctional Officers - Syndicat des agents correctionnels du Canada - CSN v. Treasury Board (Correctional Service of Canada), 2021 FPSLREB 22 (“UCCO-SACC-CSN 2021”), and Enger v. Treasury Board (Correctional Service of Canada), 2018 FPSLREB 6.
B. The employer’s position
[29] The employer’s argument was straight forward. Because the grievor’s whole shift was still there and she still worked it, this change in start time could not be a shift change and therefore had to be overtime. Based on the relevant definitions in the collective agreement, the grievor still worked her regularly scheduled shift but she just worked 1.75 hours of overtime immediately before it started (which was in excess of her regularly scheduled hours).
[30] The employer acknowledged that its labour relations bulletin relied upon by the grievor dealing with Training guidelines did state that employees who had their scheduled shifts changed to accommodate short term training were entitled to receive at least 48 hours advance notice of such change or be paid the premiums pursuant to clause 21.03(d). However, the employer argued that the grievor worked her regular shift and therefore there was no shift change and no notice was required.
[31] Relying on the recent Board decision in Bylow, the employer submitted that unless the employer directed the grievor to change her shift to another approved shift on the approved shift schedule, there could be no shift change. Because there was no pre-approved shift starting at 12:00 and finishing at 22:30, the only characterization permissible under the collective agreement for the employer’s direction was a mandatory assignment of one hour and forty-five minutes of involuntary overtime at the start of her shift.
[32] The employer argued that in UCCO-SACC-CSN 2021, the Board acknowledged that correctional officers may be required to work overtime that they did not volunteer for. At paragraph 109, the Board stated, “… clause 21.10 does leave open the possibility of involuntary overtime in specific circumstances such as emergencies or the completion of essential tasks following a shift.” The employer submitted that the assignment of mandatory training falls within the category of tasks that may be assigned as involuntary overtime, whether at the beginning or at the end of a shift.
[33] The employer further argued that if a finding was made that overtime worked at the beginning of the scheduled shift was a shift change instead of overtime, then that would in effect amend the collective agreement provisions by adding a new restriction on the definition of “overtime”, which the Board is not permitted to do under s. 229 of the FPSLRA (see Federal Government Dockyard Trades and Labour Council East v. Treasury Board (Department of National Defence), 2012 PSLRB 118 at para. 38, and Chafe v. Treasury Board (Department of Fisheries and Oceans), 2010 PSLRB 112 at para. 50).
[34] As for the bargaining agent’s reliance on the labour relations bulletin to support its argument that 48 hours’ notice was required, the employer submitted that the bulletin refers to changing an evening shift to a day shift, or vice versa, in which case 48 hours’ notice of the change was required. However, the grievor still worked her regular shift, which did not change, so the training policy was not applicable.
[35] The employer referred me to the following authorities, to support its position: Association of Justice Counsel v. Treasury Board, 2023 FPSLREB 5, Beese v. Treasury Board (Canadian Grain Commission), 2012 PSLRB 99; Bylow; Chafe; Cloutier v. Canada Revenue Agency, 2009 PSLRB 3; Federal Government Dockyard Trades and Labour Council East, Longo Brothers Fruit Market Inc. and U.F.C.W., Loc. 633, Re 1995 CanLII 18443 (ON LA); Saunders v. Treasury Board (National Defence), [1985] C.P.S.S.R.B. No. 43 (QL), PSSRB File No. 166-02-14581 (19850115); Spears v. Treasury Board (Transport Canada), [1985] C.P.S.S.R.B. No. 59 (QL), PSSRB File No. 166-02-14759 (19850130); and UCCO-SACC-CSN 2021.
VI. Decision
[36] The issue to be decided in this case is whether the employer’s change to the grievor’s regularly scheduled workday on July 31 to report one hour and forty-five minutes early was an assignment of overtime, or a last-minute change to the grievor’s shift without the necessary 48 hours notice as set out in clause 21.03(d).
[37] For the reasons that follow, I find that the employer’s direction that required the grievor to report to work 1 hour and 45 minutes earlier than her shift’s scheduled start time was not an assignment of involuntary overtime at the beginning of her shift but rather a direction advising her that the start time for her shift had been changed to accommodate the change in the start time for the training program. Because notice of that shift change was given less than 48 hours before it began, the penalty set out in clause 21.03(d) applied, and the grievor was entitled to be paid at the rate of time and three-quarters for the full shift that she worked on that day.
1. Principles of Interpretation – What is meant by ordinary meaning?
[38] In their arguments, both parties referred to jurisprudence that stands for the principle that collective agreement interpretation requires the interpreter “… to consider the entire context of the agreement, read its words in their entire context and in their grammatical and ordinary meaning, harmoniously with the scheme and object of the agreement and the intention of the parties” (see Beese, at para. 23; see also Association of Justice Counsel, at para. 109, and Chafe, at para. 51).
[39] The exercise here is to find the intention of the parties by examining the “ordinary meaning” of the relevant collective agreement language to determine whether a unilateral change to the start time of a shift by the employer to permit the grievor to attend mandatory training constituted a change of shift or an assignment of mandatory overtime.
[40] Sullivan on the Construction of Statutes, fifth edition, 2008, at page 25 provides the following definition and explanation of “ordinary meaning”:
WHAT IS MEANT BY ORDINARY MEANING
Ordinary meaning defined. The expression “ordinary meaning” is much used in statutory interpretation, but not in a consistent way. Sometimes it is identified with dictionary meaning, sometimes with “literal meaning” and sometimes with a meaning derived from reading words in-their literary ·context. Most often, however, ordinary meaning refers to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context - in the words of Gonthier J., “the natural meaning which appears when the provision is simply read through”. This last sense of “ordinary meaning” is the one adopted in this text.
[41] The ordinary meaning of this collective agreement’s language around shift scheduling and overtime assignments unquestionably demonstrates the intention of the parties to create a sophisticated regime of work and shift scheduling, much of it created on mutual consent pursuant to appendix K, and an equitable distribution of overtime required amongst those correctional officers who are qualified and have volunteered for overtime assignments. However, management retains its right to direct the workforce, based on the operational needs of the correctional facilities subject to the restrictions, penalties and premiums negotiated in the collective agreement.
2. The ordinary and natural meaning which appears when reading article 21
[42] “Hours of Work and Overtime” — is intended to set out detailed provisions and rules for shifts and shift schedules and for assigning overtime. Appendix K, which is referenced in article 21, is an entire scheduling protocol in which the parties confirm their intention to jointly create and agree to all shifts and shift schedules that CXs work locally and nationally through a joint union-management scheduling committee before the shift schedule can be implemented.
[43] Clause 21.02 provides a number of rules and protections regarding assignment of shifts, notice in advance before changing shifts within a shift schedule, and clause 21.03 requires the employer to post a shift schedule at least 14 calendar days in advance, to provide an employee with reasonable notice as to the shift that he or she will work.
[44] Clause 21.03(d) provides 48 hours’ notice of a shift change and a penalty/premium payment at time and three-quarters (1 ¾) for all hours worked on the changed shift if notice of the change is not given 48 hours in advance. It references clause 21.02(b)(ii), which obliges the employer to make every reasonable effort to ensure that an employee “… shall not be required to change his or her shift more than once during that shift cycle without his or her consent …” [emphasis added], except in the case of an emergency in an institution.
[45] The parties’ agreement on overtime allocation is set out in clause 21.10:
21.10 Assignment of Overtime Work
The Employer shall make every reasonable effort:
(a) to allocate overtime work on an equitable basis among readily available qualified employees,
(b) to allocate overtime work to employees at the same group and level as the position to be filled, i.e.: Correctional Officer 1 (CX-1) to Correctional Officer 1 (CX-1), Correctional Officer 2 (CX-2) to Correctional Officer 2 (CX-2) etc.;
However, it is possible for a Local Union to agree in writing with the Institutional Warden on another method to allocate overtime.
and
(c) to give employees who are required to work overtime adequate advance notice of this requirement.
[46] The evidence established that the employer has a computerized system known as SDS to allocate overtime equitably amongst those correctional officers who want to work overtime and volunteer for overtime opportunities when they become available. The grievor’s testimony was that she did not want to work overtime and had not volunteered or signed up for overtime assignments. The bargaining agent submitted that, because the grievor was already scheduled to work that day, she could not be assigned overtime for related periods of work on that day and if there was a need for overtime the employer was required to go to that list of correctional officers who had signed up for overtime in the computerized SDS scheduling system.
3. The nature of overtime
[47] The ordinary meaning of the overtime provisions leads to the conclusion that the parties to this collective agreement primarily regarded overtime work as being unstaffed operational work. The agreement is to make every reasonable effort to allocate overtime work equitably within the same group or level of correctional officers qualified to perform such work, and most importantly to someone who has volunteered or signed up for overtime and is available to do the work when it must be done, to ensure that management can meet the institution’s overall staffing requirements.
[48] The equitable assignment of overtime is a significant and well-litigated issue between the parties; see UCCO-SACC-CSN 2021, and Baldasaro v. Treasury Board (Correctional Service of Canada), 2012 PSLRB 54.
[49] If a correctional officer wants to work overtime, they “volunteer” to work it and put their name and availability into the SDS to indicate when they are available for overtime work that might come up. When there is a need for overtime, the employer goes to that list to assign overtime to those officers at the same group and level as they would normally do that work.
[50] The grievor testified that she avoided overtime whenever she could and that she had not signed up for it. The ordinary and natural meaning of overtime as set out by the parties in the collective agreement, being primarily operational work allocated equitably to those who have volunteered to work overtime does not support the employer’s position that the last minute direction to the grievor and her colleagues in this case to report 1.45 hours earlier to accommodate the change in the start time of the training was an assignment of involuntary overtime under clause 21.10.
[51] Instead, the July 30 direction provides notice of a new start time for the three hours of mandatory training. In some cases, this adjustment may have allowed the training to be completed within the correctional officer’s scheduled shift without penalty but in others, like the grievor, the scheduled times for the training would cause a change to her shift. The employer’s direction of July 30 makes it clear that the changes necessitated by the training were an adjustment to the pre-approved schedule where necessary, and the correctional officers were also put on notice that they could not leave after the training but had to stay to complete their shifts or be reassigned until the end time of their scheduled shift.
For correctional officers, your schedule has been adjusted through the CM (S&D). If the session ends prior to the completion of your shift, you will be required to contact the CM desk and you may be assigned to a post for the remainder of your shift. Also, you must bring your uniform with you in the event you have to return to work for any reason.
[52] In the email communications from the employer notifying the grievor and her colleagues of the change in the start time for the training, there is no reference that this change to start time is an assignment of involuntary overtime — just notice that the start time was changed.
[53] In the grievor’s situation, the employer’s direction of July 30 taken in its ordinary and natural meaning is a direction to change the start time of her shift, in order to accommodate a change to the start time of the training. The duration of the training was three hours, and it was always scheduled to take place in part during her regularly scheduled shift. The employer made it clear in the notice that she was still required to complete the balance of her usual shift after the training had finished.
[54] I find on the evidence that the change in start time for the training was not an assignment of involuntary overtime to the grievor but rather notice of a last-minute shift change.
[55] The employer referred to UCCO-SACC-CSN 2021, at para. 109, where the Board acknowledged that notwithstanding the negotiated requirement to distribute overtime equitably amongst those correctional officers who have volunteered for it, the employer has the right “… in specific circumstances such as emergencies or the completion of essential tasks following a shift.” to assign overtime on an involuntary basis. There is no evidence here to suggest that this assignment was an emergency or an essential task following a shift.
[56] I am not saying that it is never possible for the employer to assign involuntary overtime prior to the start of a shift, but if the employer chooses to do so, clause 21.10(c) of the collective agreement requires the employer to give “adequate advance notice” that an employee is being directed to work overtime:
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[57] In the present circumstances there is no reference in the emails to suggest this change was an assignment of involuntary overtime. The parties’ own communications considered in light of the ordinary meaning of the language of the collective agreement naturally lead to the conclusion that the change directed by the employer was a shift change, not an assignment of involuntary overtime.
4. Does the Board’s decision in Bylow preclude a finding of a shift change in these circumstances?
[58] The employer’s alternate submission was that, based on the Board’s decision in Bylow, it was not possible for the employer to change the grievor’s shift under clause 21.03(d) because there was no shift starting at 12:00 noon and finishing at 10:30 pm on the approved shift schedule.
[59] In Bylow, the employer unilaterally changed the start and end times of four shifts the grievors had been assigned to on a previously approved shift schedule in order to accommodate a four-day mandatory firearms training.
[60] There was no issue or discussion in Bylow about the requirement to provide 48 hours’ notice of a shift change under clause 21.03(d) likely because the employer made the contested changes to the grievors’ shift schedule on November 6, 11 days before the changes were scheduled to take effect on November 17 and 18.
[61] The central issue in Bylow was whether the employer had the ability under clause 21.02(b)(ii) to change the grievors’ shift schedule once, without the grievors’ or bargaining agent’s consent, to an entirely new four-day shift schedule in order to accommodate the mandatory four days of training.
[62] The adjudicator found the employer in these circumstances could not rely on 21.02(b) to permit it to change the grievors’ shift once without their consent and without penalty because the new shift was not an approved shift under Appendix K. In the result, he ordered the employer to pay overtime rates for any hours that the employer unilaterally scheduled outside of the hours which had been previously scheduled and approved under Appendix K.
[63] It was in this context that the adjudicator stated that “shift” is a term of art and “… I find that a ‘shift’ is only a ‘shift’ if it has been created in accordance with the collective agreement” [emphasis added]. His comments did not alter, nor could they alter management’s rights to direct its workforce to report for work at start and end times different than their approved shift.
[64] The Board member in Bylow found that where the employer exercises its managements rights to direct an employee to report to a shift that has not been approved under Appendix K then it cannot rely on the provision in clause 21.02(b) which permits the employer to change an employee’s shift once without the employee’s consent and without penalty. This finding preserves the integrity of the schedules created under the scheduling protocol set out in Appendix K.
[65] In my view, the 48-hours’ notice provision in article 21 has been negotiated for the employees’ benefit so that the employee can adjust their personal circumstances to accommodate last-minute changes to their working schedules whether the employer is changing an employee’s scheduled shift to another pre-approved shift on the schedule under Appendix K or to a new unapproved shift created unilaterally by management to meet operational or training needs as it determines is appropriate.
[66] As already noted, I find the employer’s direction to the grievor to report to work one hour and 45 minutes before the scheduled start time of her shift, in the context of the natural and ordinary meaning of the language of the collective agreement to more appropriately be characterized as a change to her shift, not an assignment of overtime before the commencement of her shift.
[67] I reject the employer’s argument that the Bylow decision stands for the proposition that no shift change is possible under this collective agreement unless to an approved shift. Bylow stands for the proposition that unless the employer changes the employee’s shift to another pre-approved shift already on the schedule, then any hours assigned which fall outside those already scheduled may potentially attract a penalty under the collective agreement. That is what happened in Bylow.
[68] In this grievance therefore, I find that the employer’s direction on July 30, 2014, to the grievor to change the start time of her shift on July 31, 2014, from 13:45 to 12:00 noon was a shift change and was made by the employer in breach of the 48 hours’ notice requirement set out in clause 21.03(d).
[69] For all of the above reasons, the Board makes the following order:
(The Order appears on the next page)
VII. Order
[70] The grievance is allowed.
[71] The employer breached clauses 21.02(b) and 21.03(d) of the collective agreement.
[72] The grievor is entitled to compensation at the rate of time and three-quarters for the hours of the full shift worked on the new schedule that she worked on July 31, 2014, except for 1.75 hours, for which the employer has already compensated her at overtime. At the hearing, she amended her requested remedy to receive cash instead of leave with pay, as she originally claimed in the grievance.
[73] I order the payment to the grievor in cash for the hours that she worked on July 31, 2014, from 13:45 to 22:30, at the rate of time and three-quarters, less what she has already been paid at the straight-time rates for those hours.
March 11, 2025.
David Jewitt,
a panel of the Federal Public Sector
Labour Relations and Employment Board