Update on Overtime Policy Grievance
filed for Ministry of Children and Family Development ("MCFD") Social Workers
The BCGEU has now received the decision on the overtime policy grievance that was heard by Arbitrator Chris Sullivan on May 1 and 2, 2017. Although the Arbitrator did not rule in our favour, there are some issues that we were able to get clarification on.
In his decision, Arbitrator Sullivan clarified that MCFD Social Workers who are flex-time employees must work 9 hours in one day or have already put in their flex-time before they will be entitled to overtime.
At hearing, the BCGEU argued that overtime must be paid when an MCFD social worker is directed by the employer to work past their chosen finish time because they are flex-time employees and as such have discretion over their start and finish times under the Public Service Collective Agreement. Arbitrator Sullivan disagreed with the BCGEU's argument, finding that flex-time employees directed to work beyond their chosen shift finish time, as a result of having to attend to an "emergency", remain flex-time employees covered by the flex-time provisions in the collective agreement. He said that flex-time employees could not have "one foot inside the system and one foot outside the system" and that there was no contractual basis for flex-time employees not being covered by the flex-time overtime provisions in the collective agreement.
The BCGEU also argued past practice. In some parts of the province, the employer was granting overtime where an MCFD social worker was directed to work past their chosen finish time. The BCGEU argued that the employer was prevented from changing that practice without notice to the BCGEU, and an opportunity for the BCGEU to address it in bargaining. Arbitrator Sullivan disagreed with the BCGEU's past practice argument and found where there had been a practice of granting overtime in this way, the employer did not know about the practice, and when it became aware, it discontinued the practice.
The BCGEU will continue to push back on the employer's influence over social workers' hours and how social workers put in their flex-time. On a positive note, the decision does provide clarification that the employer can only take away social worker's flexibility around choosing their start and finish times when child protection "emergency" arises and they are directed by the employer to attend that "emergency" after their chosen finish time.
We have assessed the merits of appealing, but will not be appealing this decision. Going forward, the BCGEU advises MCFD social workers follow their employer's direction if they are directed to work past their chosen finish time, but to document the specific reason they are being directed to do this work. If the reason is not an "emergency", the BCGEU asks social workers to "work now and grieve later". In other words, follow the direction of the employer, but file a grievance. The Arbitrator's decision does not address the employer's ability to direct MCFD social workers start time. The BCGEU's position is that MCFD social workers who are flex-time employees still have control over what time they start their day and have control over when they finish their day, except where the employer directs them to attend child protection emergency.
As we move into preparations for 2019 collective bargaining, we appreciate your continued support and patience on this issue. Please contact Judy Fox-McGuire, Component 6 Vice President, if you have any questions.
Download Communication Update Overtime Policy Grievance MCFD -D4.pdf
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