Those of you who have been following this series of blogs will know that Bill 148 ESA amendments generally apply to unionized workplaces as of the effective date of the particular amendment.  There are a few limited exceptions, however.

In yesterday’s post, we addressed how employers with unionized employees may find temporary relief from the Bill 148 “equal pay for equal work” amendments.

In this post we explain the three circumstances in which a collective agreement in effect on January 1, 2019 may temporarily prevail over corresponding on-call and scheduling provisions in Bill 148.

1. Minimum pay for being on call (ESA section 21.4)

Under Bill 148, when an employee who is on call is not required to work, or is required to work but works less than three hours, the employer must pay the employee wages equal to at least three hours at his or her regular rate. An exception applies if the employer required the employee to be on call for the purposes of ensuring the continued delivery of essential public services, regardless of who delivers those services, and the on-call employee was not required to work.

Although this new three-hour rule comes into effect on January 1, 2019, employers of unionized workforces may be able to delay its implementation.  The amendment expressly states that if a collective agreement in effect on January 1, 2019 contains a provision that addresses payment for being on call, and there is a conflict between the provision of the collective agreement and section 21.4 of the ESA, then the collective agreement provision prevails until the earlier of the date the collective agreement expires or January 1, 2020.

2. Right to refuse to work or be on call (ESA section 21.5) 

Bill 148 gives employees the right to refuse a request to work/be on call on a day that they were not scheduled to work or be on call if the employer makes the request less than 96 hours in advance.  However, an employee has no right to refuse the request to work or be on call if the request is made: (a) to deal with an emergency; (b) to remedy or reduce a threat to public safety; (c) to ensure the continued delivery of essential public services; or (d) for any other reason that may be prescribed.

While this amendment to the ESA is set to come into effect on January 1, 2019, there may be some temporary relief for employers of unionized workforces.  If a collective agreement in effect on January 1, 2019 contains a provision that addresses an employee’s ability to refuse the employer’s request or demand to perform work/be on call on a day the employee is not scheduled to work or be on call, and there is a conflict between the collective agreement provision and section 21.5 of the ESA, the collective agreement provision prevails until the earlier of the date the collective agreement expires and January 1, 2020.

3. Cancelling a scheduled day of work or scheduled on call period without sufficient notice (ESA section 21.6)

Bill 148 requires an employer to pay employees three hours of wages at their “regular rate” if the employer cancels their entire scheduled day of work or entire scheduled on call period with less than 48 hours advance notice.  However, note that this new three-hour rule does not apply if the day of work or on call period is shortened or extended.

Further, this three-hour rule does not apply if: (a) the employer is unable to provide work for the employee because of fire, lightning, power failure, storms or similar causes beyond the employer’s control that result in the stopping of work; (b) the nature of the employee’s work is weather-dependent and the employer is unable to provide work for the employee for weather-related reasons; or (c) the employer is unable to provide work for the employee for such other reasons as may be prescribed.

As above, employers with collective agreements in effect on January 1, 2019 will be able to delay implementation of this amendment if the collective agreement contains a provision addressing payment when the employer cancels the employee’s scheduled day of work or on call period, and there is a conflict between the collective agreement provision and section 21.6 of the ESA. If those conditions apply, the collective agreement provision prevails until the earlier of the date the collective agreement expires and January 1, 2020.

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