The Grievance Settlement Board recently heard a Union grievance filed with the Ministry of Natural Resources regarding the overtime compensation for Conservation Officers. In this decision, the Board interpreted the rights of employees classified in schedules 3.7 and 4.7 under article ADM 8 (now UN 8).
Under the MNR overtime policy, Conservation Officers were permitted to work overtime on the strict understanding that any overtime work would be compensated with time off, rather than paid overtime. In some districts, this policy was formalized as a signed agreement between each Conservation Officer and his or her supervisor. In other districts, it was
posted as a Ministry directive.
The MNR also prohibited Conservation Officers from “cashing-out” their banks of compensating time on March 31. Some Conservation Officers were scheduled off by the MNR, and threatened with discipline if they attended work. Others were forced to carry their compensating time forward into the next fiscal year.
The Board reviewed the overtime provisions of article ADM 8, and held that Conservation Officers, and other employees in schedules 3.7 and 4.7, have a “right” to be paid for overtime. Where the Ministry consents, they also have the “option” of taking compensating time off.
The Board determined that, when the MNR decides whether to authorize overtime, it cannot rely on factors that are inconsistent with the collective agreement. In this case, the MNR distributed overtime based on whether an employee was prepared to waive his or her right to paid overtime. The Board concluded that the MNR’s “entire practice is wrong and must
cease immediately.”
The Board also found that the MNR cannot require an employee to carry forward or take off banked compensating time. The right to receive pay for compensating time always remains with the employee.
This decision applies to all members who are in schedules 3.7 and 4.7, such as occupational health and safety inspectors, correctional officers, nurses, and employees classified as OAD 1-9. In future, when deciding whether to authorize overtime, it will be improper for a supervisor to consider or take into account how an employee may choose to be
compensated for overtime work. As examples, a supervisor cannot ask if an employee will accept compensating time, or whether he or she plans to cash out banked compensating time. Similarly, a supervisor cannot review an employee’s previous use of overtime or compensating time. In addition, supervisors cannot impose a maximum number of hours that an employee
may carry as banked time.
The Board also held that any “overtime agreements” between individual employees and the MNR are null and void. This ruling applies to all members in all Ministries. Simply put, the Ministry cannot bypass OPSEU to negotiate agreements with employees that contradict the collective agreement.
Over the next few months, the Board will review a number of individual grievances filed by Conservation Officers regarding the MNR overtime policies. These grievors may be entitled to compensation, but the Board did not order any general compensation for Conservation Officers who did not file grievances.
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