When can a collective agreement deviate from the law? In a
recent Ontario arbitration decision, the issue arose of whether a
work schedule in agreed to in collective bargaining failed to
comply with the Hours of Work provisions in the
Ontario Employment Standards Act,
Section 18 of the ESA requires employees to
have certain amounts of time off per day, per week and in between
shifts. However Section 5(2) of the ESA permits a
greater benefit to prevail in a collective agreement (or
individual contract) that provides for more than the
ESA requirements on specific subject matter.
In examining the issue, the arbitrator
identified two competing lines of arbitral decisions on the
issue. One line of decisions held that the extra compensation
given to employees for working overtime did not relate to the
specific subject matter referred to in section 18. A second line of
cases held the opposite.
The arbitrator held that the second line of
cases were preferable because they recognized that an
employee's rights are expanded when they can choose whether to
work overtime shifts or not. The arbitrator acknowledged that
the ESA is "somewhat paternalistic" by
protecting employees against being pressured to
volunteer for double shifts. However, there appeared to be no
pressure or coercion on the facts of the case. The collective
agreement therefore provided a greater benefit to the employees
such that double shifting did not result in a breach of the
Written with the assistance of Danny
Urquhart, articling student.
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Unfortunately, reasonable accommodation for employees in the workplace continues to be the source of significant litigation and even today we continue to see outrageous examples of employers behaving badly.
We are now beginning to see reported cases involving charges and subsequent fines laid against employers for failing to provide information, instruction and supervision to protect a worker from workplace violence.
On October 13, 2016, the Supreme Court of Canada denied leave to appeal an Ontario Court of Appeal decision which ordered an employer to pay a former employee 37 months of salary and benefits following termination.
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