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.

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