CBSA Summer Action Plan 2022: Information on grievances, and answers to frequently asked questions

Under the SAP, managers must exhaust several options before resorting to imposing mandatory overtime:

• Exhaust the local overtime offering list;
• If applicable, exhaust the out-of-district overtime offering list;
• If applicable, exhaust the overtime offering list for employees who meet the conditions of employment, but who may not be substantively in the job that normally performs the overtime duties to be performed;
• Review for potential shift switches where deemed operationally feasible, taking into consideration short shift change premiums;
• Consider denying or cancelling pre-approved discretionary leave; and
• Consider impact(s) to employee occupational health and safety with respect to the number of voluntary overtime hours and mandatory overtime hours worked.

When ordered to work mandatory overtime, members should ensure that their manager has exhausted every possible option as mandated by the SAP.

As per clause 28.03 of the FB collective agreement, the employer should aim to give at least four hours’ notice of any requirement for overtime work, except in cases of emergency. For clarity’s sake, an emergency is understood to be an unexpected and possibly dangerous situation requiring immediate action. When in doubt whether a situation constitutes an emergency, members should consult their local union representative.

The Canada Labour Code makes the following provisions with regards to refusing overtime:

Right to refuse

174.1 (1) Subject to subsections (2) and (3), an employee may refuse to work the overtime requested by the employer in order to carry out the employee’s family responsibilities referred to in paragraph 206.6(1)(b) or (c) [see below].

Reasonable steps

(2) An employee may refuse to work overtime only if

(a) they have taken reasonable steps to carry out their family responsibility by other means, so as to enable them to work overtime; and

(b) even though the steps referred to in paragraph (a) have been taken, they are still required to carry out that responsibility during the period of the overtime.

Exceptions

(3) An employee is not to refuse to work overtime if it is necessary for them to work overtime to deal with a situation that the employer could not have reasonably foreseen and that presents or could reasonably be expected to present an imminent or serious

(a) threat to the life, health or safety of any person;

(b) threat of damage to or loss of property; or

(c) threat of serious interference with the ordinary working of the employer’s industrial establishment.

206.6(1)(b) and (c):

(b) carrying out responsibilities related to the health or care of any of their family members;

(c) carrying out responsibilities related to the education of any of their family members who are under 18 years of age;

A member who is unable to fulfill their duties because of illness or injury, but is still ordered to attend work for mandatory overtime (on a day of rest, on a hold-over or callback, or when a doctor’s note is requested to prove illness or injury and there is no historical pattern of absences) may be in a position to grieve.

A member may grieve if they are ordered to come to work for mandatory overtime, and they have a matter to attend to that involves a human rights ground, such as family status/elder care, medical disability, accommodation for maximum hours of work, religious grounds, etc.

As per Summer Action Plan policy, managers should aim to “reduce the level of discretionary leave approval outside of contractual obligations (annual leave bidding process) to account for non-discretionary leave (sick, family related leave, care of family)”, and are encouraged to “identify periods where non-discretionary leave is highest, where discretionary leave requests should be denied due to operational requirements”.

When denied leave, members should request the reason for the denied leave in writing. A blanket ‘operational requirements’ is not considered sufficient reason according to arbitral decisions, and specific reasons should be given.

Members who are refused CT should request the reason in writing. If given a blanket refusal or told that no CT will be accepted as per policy, they may file a grievance.

Members with documented functional limitations that would be violated if they came to work or performed specific duties violating these limitations may grieve if they are force to work mandatory overtime.

If a member is subjected to repeated (more than a few within a master schedule cycle) and/or projected shift changes, this could be a violation of paragraph 25.21(b) of the FB collective agreement and may be grieved.

There is no differentiation between voluntary and involuntary or mandatory overtime in the collective agreement or relevant jurisprudence. However, there exists governing principles and practices that should be followed when assigning overtime:

• Managers and supervisors should follow CBSA’s Overtime Offering Principles and Guidelines;
• It should be predicated on operational requirements;
• Managers and supervisors should make every reasonable effort to avoid excessive overtime (varies case by case);
• Managers and supervisors should make every reasonable effort to distribute and offer overtime on an equitable basis, meaning that everyone should be afforded the same opportunities and share the overtime hours;
• Overtime can only be offered to readily available employees, meaning that they are able to report for duty when the time arises;
• Overtime can only be offered to qualified employees, meaning that they have the requisite skill, up-to-date certifications and competencies to fulfill the assigned duties.

The short answer is yes—under certain circumstances and subject to operational requirements, they can. The offering of overtime is not limited to voluntary situations alone and paragraph 28.03(a) of the FB collective agreement speaks to this. Supervisors and managers must make every reasonable effort to avoid excessive overtime and to offer it on an equitable basis.

Your manager or supervisor is likely to speak to you in person while you’re on duty, and make you aware of any shift changes, hold-overs or call-backs. They “shall, wherever possible” give at least 4 hours’ notice before having to work overtime. Be ready to have difficult discussions on the spot and know how to respond in a respectful and professional manner.

Moreover, unless you’ve been placed on standby (article 29) or on sick leave where the employer may need to contact you with respect to return to work or other accommodation requirements, you are under no legal obligation to answer calls from the workplace or return their calls—which is why they’re likely to offer you overtime while on duty.

In every situation where a manager or supervisor is ordering you to work overtime, you should ask them the following questions:

• Have you exhausted the local or district overtime offering list?
• Have you exhausted the overtime offering list for employees who meet the conditions required for the position working overtime?
• Have you explored shift changes?
• Have you considered denying or cancelling pre-approved discretionary leave?
• Have you considered the impact to my occupational health and safety?
• Is this offering being made in an equitable way, taking into account the hours I’ve worked in comparison with those of my co-workers?
• Has my union been notified of this offering of mandatory overtime?
• Is this offering of mandatory overtime in pursuit of legitimate operational requirements? If so, what are those operational requirements?
• What steps have you taken to follow the collective agreement and your duty with respect to the offering I’m being made?

Last but not least, always make sure to get all this information in writing.

If there are no reasons why you can’t work the overtime, such as those found in section 174 of the Canada Labour Code, you may need to comply with the order.

Important: Your position may be “safety sensitive” (particularly applicable to armed officers) and you should be cognizant of your physical and mental state at the time you’re being asked to work. If you are too tired or exhausted, you may have difficulty or face increased risk in travelling home, and you should tell your manager. Be clear about how you’re feeling, highlight any contributing factors (poor sleep the day before, long-shifts or recently worked overtime hours, etc.) and raise the issue about concerns for your health and safety if required to stay on duty. If your manager insists and you truly believe this will cause an unsafe work environment, speak to your local union representatives.

Should you wish to be considered for overtime offerings, make sure to let your manager or supervisor know. By putting your name forward on the overtime offering list, you’ll be helping your co-workers who may not be as interested or able to absorb that much extra work time over the summer.

If this is something that would tilt you in favour of taking the offered overtime, ask your manager to approve (in writing) that it be compensated in equivalent leave with pay (paragraph 28.06(a)). You should be aware that, as per the SAP, the employer has already indicated that they would not be approving compensatory time in lieu of cash, so use this as leverage to your advantage when deciding whether to voluntarily accept overtime.

On an infrequent basis, yes—if it is necessary to meet operational requirements. This becomes problematic, however, when the changes are happening with higher frequency or regularity and with predictability or far advanced notice.

Shift schedules are protected under article 25 and Appendix B of the FB collective agreement. Article 25.14 speaks to parameters about scheduling commencement of shifts and stipulates that the employer must make reasonable efforts to avoid excessive fluctuation in hours of work. Be sure to take note of every time your shift schedule and the VSSA has been changed (without proper notice will attract premiums!) and report these to your union representative.

The employer should not be demanding sick notes from employees unless they can point to and raise concerns about an employee’s chronic or patterned absenteeism, or in the case of extended sick leave. The SAP speaks to local managers developing their own approaches to situations where they may require sick notes. The Canadian Medical Association has urged employers to abstain from requiring sick notes of employees to reduce the demand and pressures faced by doctors and nurses. At the end of the day, members should comply with orders from managers, and raise the issue with their union representatives so it can be addressed with management.

Accommodation agreements are founded on the medical limitations and restrictions prescribed by a qualified practitioner, and agreed to between the employee, the employer, and where applicable, the union. These agreements are subject to periodic review and further validation. However, if the employer is going against the terms of the accommodation agreement, speak to your local union representative immediately.