Work ‘Voluntary’ Overtime Or You May Go To Jail, Employees Told

Sept. 16, 2022

Collectively refusing to work overtime can be illegal in Alberta, highlighting Canada’s poor labour standards.

A couple of weeks ago, workers who install scaffolding at a Suncor Inc. site in Alberta were informed by their employer that if they didn’t stop refusing “voluntary” overtime, they could be fired, fined or possibly jailed. 

According to reporting on the matter, and the findings of the Alberta Labour Relations Board (ALRB), an “anonymous letter” had been circulated to the workers, encouraging them to collectively refuse overtime in order to put pressure on their employer for additional compensation and improved working conditions. 

The workers are employed by AlumaSafway, but perform work for Suncor, one of Canada’s largest fossil fuel companies. They are members of the United Brotherhood of Carpenters and Joiners of America, Local Union 1325. Importantly, their collective bargaining agreement with the employer was still in force at the time, i.e. they weren’t in bargaining, working under an expired contract or in a “legal strike position.” 

As the story goes, the employer then applied for a hearing at the Labour Board, alleging that, by engaging in “illegal strike activity,” the workers were in violation of the Alberta Labour Relations Code. The question before the Board was then: Is refusing voluntary overtime a form of strike activity? 

Unfortunately, for the workers involved, this is a settled question. Collectively refusing to work overtime, when doing so is the normal procedure, is a form of “work refusal,” “concerted action” or strike activity. 

As the ALRB report concluded: “The evidence before the Board leads the Board to the inference that such refusal is a concerted act by the Employees acting in concert for the purpose of compelling the Employer to agree to terms and conditions of employment.” At the employer’s request, the Board filed its directive with the Alberta Court of Queen’s Bench, making its findings an enforceable court order carrying civil and criminal penalties for continued violation. 

The employer then sent a memo to the workers, informing them of the ALRB decision and the consequences of noncompliance. The letter concluded, “Overtime is required, and we expect you to behave lawfully and take this work as you normally would.” 

Judging by the media attention that this story has received, and the tone of the commentaries, many people are shocked that workers can be forced to work “voluntary” overtime. Some are perhaps doubly surprised that this can be forced upon unionized workers. Indeed, as the scaffolders’ collective agreement explicitly states, overtime is strictly voluntary. 

What’s especially interesting about the Alberta scaffolders’ case is that it brings together two particular quirks of Canadian labour law: the ability of employers to compel overtime work, and the inability of workers to withdraw their labour to address immediate workplace issues. 

As I’ve covered in previous Class Struggle newsletters, the right to strike is extremely limited in Canada, perhaps more than any other rich, industrial country. Only under very narrow circumstances, when a collective agreement has expired, bargaining has reached an impasse and a successful strike vote has been conducted by the union, can workers hit the picket line. As the Alberta example shows, however, labour boards treat all kinds of smaller, collective actions as forms of strike activity when considering whether to bar workers from engaging in them. Moreover, once a labour board has found some collective action to be unlawful and ordered workers to stop, it becomes in part the responsibility of the union to police the conduct of its members. Frequently, unions are held liable for very steep fines if workers defy the courts’ orders. 

This is not standard practice in most of Canada’s peer nations. In many Western European countries, workers can engage in strikes and protests at any time. Importantly, they can do so to address immediate workplace grievances or health and safety issues, but also to oppose government policies affecting workers, i.e. they may strike for “political” reasons. Even in the United States — certainly no workers’ paradise — the National Labor Relations Act protects “concerted activity” broadly, including the right of union and nonunion workers to withdraw their labour. 

The inability of Canadian workers to strike during the life of a union contract creates all kinds of issues in practice. For example, the workers in Alberta were objecting precisely to what they viewed as excessively long working hours, as well as inadequate compensation for the time they spend away from their families. The ability of employers, such as AlumaSafway, to run to the courts any time workers raise issues through “unlawful” job action, winds up leaving workplace concerns festering and unaddressed. The employer is not compelled to deal with them until a new round of collective bargaining commences. 

This brings us to the second issue: so-called “voluntary” overtime. 

In the eyes of labour law, “voluntary” has become essentially an inoperative word. Provincial labour boards have decided that if workers regularly work overtime, they can’t stop doing so in the future, whether to pursue collective demands or not. The Canada Labour Code, which covers employees in the federally-regulated private sector, such as airlines, telecommunications and port shipping, also bars collective overtime refusals. Technically, individual unionized workers can refuse overtime with valid reasons, and most collective agreements should protect those who do, but the line between individual and collective overtime refusals has become very fuzzy. 

The irony is that, as the use of overtime to fill labour shortages has grown, the fact that it has become common practice means that when workers refuse it, doing so is consequently viewed outside the “normal operation” of the workplace. It wouldn’t surprise me to see this issue arise more as employers continue to over-rely on overtime to address staffing shortages.

When it comes to nonunion workers, the issue is similarly bleak. Workers without union protection must depend only on hours of work rules enumerated in provincial employment standards laws. For most workers, provincial laws set the “standard hours of work,” beyond which an overtime rate applies. In the majority of provinces, the standard workweek is 40 hours, though in some it’s 44, and in Nova Scotia and Prince Edward Island, it’s 48 hours. 

While overtime pay is typically one and a half times an employee’s regular rate of pay, New Brunswick and Newfoundland and Labrador persist with the antiquated practice of allowing employers to only pay 1.5 times the minimum wage, regardless of a worker’s regular hourly rate. This practice likely results in overreliance on overtime work in these two provinces. 

DIG DEEPER

All Workers Deserve Protection From Being Unjustly Fired

In 11 of the 14 jurisdictions in Canada, bosses can fire or lay off their workers for any reason.

But here’s the rub: While there’s nothing in employment standards laws to require employees to accept overtime hours, because most workers can be fired for any or no reason (with sufficient notice), refusing overtime puts their jobs at risk. You might call it, following Karl Marx, the “dull compulsion of the market place.” The threat of unemployment makes the technical right to individually refuse overtime somewhat meaningless. 

In response to the AlumaSafway case, president of the Alberta Federation of Labour, Gil McGowan, aptly pointed out that conservative politicians have been continually “railing” against the “lack of freedom in Canada.” Yet they are entirely silent about the heavy restrictions on the ability of workers to collectively exercise freedom at work. 

Silence on these issues is deafening across the Canadian political landscape, it seems. The Alberta scaffolders’ examples should encourage us to think about ways to expand the freedom of workers to act collectively at work. 

Democracy shouldn’t end at the door of your workplace. 

[Top: Photo via Josh Sorenson on Pexels.]