Canada Employment and Immigration Union -
November 1, 2003

Case review: overtime distribution

The obligation to offer overtime equitably

Article 28.05 of the PA agreement requires the employer to make every reasonable effort to offer overtime on an equitable basis among readily available, qualified employees. The union and the employer have often disagreed about the application of this provision.

In Zelisko and Audia (166-2-31346/31347), an adjudicator concluded that the employer was required to compensate the grievors in cash for lost overtime opportunities.

The facts

The grievors are both employed at Citizenship and Immigration. One is a PM-4 Supervisor and the other a PM-3 Admissions Officer. Both grieved that they were denied the opportunity to carry out escort functions on an overtime basis. Prior to October 2000, the grievors had been on a rotational list for the escort function and had performed escort functions up to that point in time.

Beginning in October 2000, the employer changed the definition of “qualified” for the escort function. However, at that time, the change was not a final change – the new policy said that enforcement officers would “normally” perform the escort function. The employer also argued that since the grievors were day workers, they were not readily available for escort functions.

The decision

The adjudicator rejected these arguments in part. He concluded that the availability of a worker for a function cannot be pre-determined but rather has to be looked at in each case and situation. “To allege that all officers working in the Admissions Unit are unavailable at all times to perform escort duties simply because they work from Monday to Friday seems to me to be somewhat arbitrary”.

In addition, given that the change in qualifications did not become final until February 13, 2002, the adjudicator concluded that the grievors remained qualified for the escort function until that time.

He ordered that the parties determine the amount of overtime the grievors would have received for the period October 2000 to February 2002 based upon the amount of overtime each was offered for escorts during the previous period.

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