When Collective Agreements And The ESA collide

NR
Norton Rose Fulbright Canada LLP

Contributor

Norton Rose Fulbright Canada LLP logo
Norton Rose Fulbright is a global law firm providing the world’s preeminent corporations and financial institutions with a full business law service. The firm has more than 4,000 lawyers and other legal staff based in Europe, the United States, Canada, Latin America, Asia, Australia, Africa and the Middle East.
When can a collective agreement deviate from the law?
Canada Employment and HR

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, 2000 ("ESA").

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.

This became an issue in Durham (Regional Municipality) and CUPE, Local 132 (Hours Free From Work), Re, where a collective agreement permitted employees to volunteer for double shifts (one regular shift followed by a voluntary overtime shift) and thereby go over the maximum shift of 13 hours allowed by the ESA.

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 ESA.

Written with the assistance of Danny Urquhart, articling student.


About Norton Rose Fulbright Canada LLP

Norton Rose Fulbright is a global law firm. We provide the world's pre-eminent corporations and financial institutions with a full business law service. We have more than 3800 lawyers and other legal staff based in more than 50 cities across Europe, the United States, Canada, Latin America, Asia, Australia, Africa, the Middle East and Central Asia.

Recognized for our industry focus, we are strong across all the key industry sectors: financial institutions; energy; infrastructure, mining and commodities; transport; technology and innovation; and life sciences and healthcare.

Wherever we are, we operate in accordance with our global business principles of quality, unity and integrity. We aim to provide the highest possible standard of legal service in each of our offices and to maintain that level of quality at every point of contact.

For more information about Norton Rose Fulbright, see nortonrosefulbright.com/legal-notices.

Law around the world
nortonrosefulbright.com

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Mondaq uses cookies on this website. By using our website you agree to our use of cookies as set out in our Privacy Policy.

Learn More