Employment Standards and Crown Agencies

Employment Standards versus our current Collective Agreement

Members have asked several questions that relate to the Employment Standards Act and ask “How is it that we are not covered under the Employment Standards Act?”

This question has been asked.

Q – Why are casuals scheduled with less than 12 hours between shifts when full time employees are not?

The reason is actually quite simple.

A – It is not defined in our collective agreement for casuals.

Since we are “Crown ” employees (we work for the Government of Ontario), we are exempt from sections of the Employment Standards Act. Without definition or clarification in our contract, we are simply not covered under the following exemptions of the Employment Standards act.

 Here are the exemptions from the ESA website.

http://www.labour.gov.on.ca/english/es/tools/srt/coverage_government_ont_govt.php

ONTARIO GOVERNMENT AND ONTARIO GOVERNMENT AGENCY EMPLOYEES

 

Standard Are You Covered? Special Rule or Exemption Details
Minimum Wage Exempt These employees are not entitled to the minimum wage.Employment Standards Act, s. 3(4)
Hours of Work Exempt These employees are not covered by the daily and weekly limits on hours of work. Employment Standards Act, s.3(4)
Daily Rest Periods Exempt These employees are not covered by the daily rest period rule. Employment Standards Act, s. 3(4)
Time Off Between Shifts Exempt These employees are not covered by the time off between shifts rule. Employment Standards Act, s. 3(4)
Weekly/Bi-Weekly Rest Periods Exempt These employees are not covered by the weekly/bi-weekly rest period rule. Employment Standards Act, s.3(4)
Eating Periods Exempt These employees are not entitled to an eating period.Employment Standards Act, s. 3(4)
Overtime Exempt These employees are not entitled to overtime pay.Employment Standards Act, s. 3(4)
Public Holidays Exempt These employees are not entitled to public holidays or public holiday pay. Employment Standards Act, s. 3(4)
Vacation With Pay Exempt These employees are not entitled to a vacation with pay.Employment Standards Act, s. 3(4)
Notice of Termination/Termination Pay Covered
Severance Pay Covered
Retail Business Stores Exempt These employees are not entitled to refuse to work on a public holiday or a Sunday even if they work at a retail business store. Employment Standards Act, s. 3(4)Note: Employees may have such a right under theHuman Rights Code.
Liability of Directors Exempt These employees are not covered by the directors’ liability rules. Employment Standards Act, s. 3(4)
Enforcement Provisions Exempt These employees are not covered by the Act’s enforcement provisions. Employment Standards Act, s.3(4)

 

In other words, the Government makes the law for the general working people of this Province, yet turns around and exempts their own workers from certain aspects of the law.  If your collective agreement does not have specific wording to add the exemption, the workers are simply not covered.

 The Full time employees have the wording in our contract that does not allow the employer to schedule them with less that 12 hours without paying the employee overtime. Here is the clause from the collective agreement.

7.2 (d) Where an employee covered by section (a)(i) above is required to work before twelve (12) hours have elapsed since the completion of the employee’s previous shift, he/she shall be paid time and one-half (1 1/2) for those hours that fall within the twelve (12) hour period

 

The question asked right after this is:

Q – I have seen full time employees work the afternoon shift and come back in the next morning without 12 hours between their shifts. Does that mean they are getting paid overtime?

The answer is “NO”

You might think, how is that so?

Well again it is another article in the collective agreement that states:

7.4 (a) (ii) Hours of work may be changed without any premium or penalty if agreed upon between the employee and management.

Full time employees can agree to work with less than 12 hours between the shift without overtime being paid. Since full time employees are working on rotation (also in the collective agreement) it gives them some leeway in case they have to switch an afternoon shift for a morning shift or visa versa. This is a good thing for workers as it gives employees leeway to change their shift if needed.

The next question is:

Why are casuals not covered by this?

Casual employees are exempt of many parts of the collective agreement. Here is the list of exemptions from our contract that lists the articles that casuals are not covered under.

32.3 The following Articles shall not apply to casuals: Articles 5, 8 to 17 inclusive, 19, 20, 21, 23, 25, 30, 31, 34 to 47 inclusive and 49. The application of Article 6 shall be limited to 6.7(f) (iii) and 6.17 exclusively. The application of Article 7 shall be limited to 7.6(b) exclusively. The application of Article 22 is limited by the provisions of Article 32.4, below. The application of Article 48 is limited to 48.7(d) (ii) exclusively.

Therefore, the only section of Article 7 that covers casuals is 7.6(b). Casuals are exempt from all other 18 sections of Article 7!

7.6 Overtime(b) Where there is a requirement for overtime to be worked, it shall first be offered to full-time employees on a rotational basis. Where sufficient personnel do not volunteer, such overtime shall then be offered to permanent part-time employees or in logistics facilities to seasonal employees and then to casual employees. Failing sufficient volunteers, overtime would be assigned to the least senior qualified employee

If casual employees had the same language as in articles 7.2 and 7.4 (d), it may end up with casuals getting scheduled for less hours than they are available. It also  gives the employer the opportunity to pick and choose favorites to work when they want. In other words, it would exempt casuals from working certain shifts based on how the employer decides to schedule. They could turn around and say, you don’t want to work prior to the 12 hours between shifts, then someone else will. And you will not get the hours of work.

If you look at the exemptions in the Employment Standards Act, all Crown employees are simply not covered for hours of work, daily rest periods, rest periods, holidays, vacation pay and overtime. Unless of course it is defined in our collective agreement.

If you look at the exemptions in the collective agreement for casual employees, you wonder “How can 70% of the workforce be exempt of the majority of our collective agreement?”

The reason the contract exempts casuals from most aspects of the collective agreement is because there was a time when the full time workforce was higher than the casual workforce. 

I hope this makes members realize how important this next round of bargaining for our next collective agreement is for both full time and casual retail employees.

In Solidarity,

Maria Bauer – President Local 376

For a printable version of this article please click the link below

Employment Standards

 

 

Casual Benefits

During the month of January, the employer will calculate the total hours casuals have worked for the year of 2015.

There are two reasons for this. One is to see the casuals who have achieved the 1300 hours and 5 years of service to be eligible for casual benefits. tHE SECOND REASON THEY ARE CALCULATING TOTAL HOURS IS TO REVIEW THE pvr (PERMANENT VACANCY REVIEW)

Recently,  notice has been sent to all stores with the names of the casuals who have qualified for benefits. The employer will ask you if you want to opt in for the benefits or not. Once you sign that you would like the benefits, they will then send out a form to the stores so you can fill in all your personal information, including beneficiaries.oNCE YOU OPT IN, YOU CANNOT CHANGE YOUR MIND UNTIL JANUARY 2017.

Here is the article in the collective agreement that speaks of casual benefits.

32.13 Casual Benefit Plan Effective April 1, 2014 casual employees who have worked 1300 hours in the previous calendar year and who have five (5) years of casual seniority may opt into the Casual Benefit Plans under the same benefit plans as full time employees, subject to the following limitations:

Basic Life Insurance- For employees only, in the amount of ten thousand dollars ($10,000.00) shall be provided to Casual employees as defined above.

Dental- for employees and their family, routine (Basic) services as provided under the Manulife Policy # 10055, or its equivalent up to a maximum of one thousand dollars ($1,000.00) per year per covered person.

Supplementary Health and Hospitalization- only the prescription drug plan will apply.

For the purposes of the Casual Benefit Plan, it is understood that the following articles do not apply to casual employees: 21.1, 21.2 (a) (b) (c)(iii) (d) (e) and (f), 21.3 in its entirety, 21.4 in its entirety, 21.5 in its entirety, 21.7(a) major treatment and three thousand dollars ($3,000) maximum coverage does not apply, and 21.8

 

If this is the first year you qualified, your benefits will begin April 2016.

Before you opt in, there are some things you should think about.

The first thing you should think about is “what will I be covered for?”

Casual benefits are very limited. They are not the same as full time benefits. As you can see above , in the article that speaks of benefits, the COLLECTIVE agreement names many articles that casuals are NOT covered UNDER. It is easier to understand what casuals ARE covered UNDER.

There are 3 things that casual benefits cover for the employee and their DEPENDENTS.

  • $10, 000 basic life insurance (this is if you die your estate or DEPENDENTS will RECEIVE $10, 000)

  • Basic dental of $1000 per year (covers casual employee and dependents of the casual employee)

  • prescription drug plan with some limitations. (FOR CASUALS AND DEPENDENTS)

The other thing to consider is what you will NOT be getting.

If you opt in for the casual benefits, you will loose your 4% pay in lieu of benefits.

Here is the clause in the collective agreement that speaks of the pay in lieu of benefits

32. (b) A casual employee shall receive eight percent (8%) of gross pay, not including vacation pay, which shall be added to his/her regular pay, to compensate for the paid holidays in Article 8 and in lieu of benefits under Article 21. Where, however, a casual employee is in receipt of benefits under Article 32.13, the casual employee shall receive four percent (4%) of gross pay, not including vacation pay, which shall be added to his/her regular pay, to compensate for the paid holidays in Article 8 and will not receive any amount in lieu of benefits under Article 21.

4% pay in lieu of is calculated on your gross pay.

BEFORE YOU OPT IN FOR THE BENEFITS, PLEASE CONSIDER HOW MUCH PAY IN LIEU OF YOU MAY LOOSE. IT MAY BE BENEFICIAL TO NOT OPT IN FOR THE BENEFITS IF YOU DO NOT HAVE NO  OR DO NOT USE MANY PRESCRIPTION MEDICATIONS.

FOR EXAMPLE, IF YOUR GROSS PAY IS $40, 000 TIMES 4 % . YOU WILL LOOSE $1600 PAY IN LIEU.

EVERY YEAR IN JANUARY,  THE NOTICE WILL GO OUT AGAIN. EVERY YEAR YOU WILL HAVE TO QUALIFY WITH THE 1300 HOURS AND 5 YEARS OF SERVICE.  AT THAT POINT, YOU CAN EITHER OPT IN OR OUT OF THE BENEFITS, IF YOUR CIRCUMSTANCES CHANGED.

IF YOU ARE CURRENTLY ON THE PLAN, YOUR DENTAL BENEFITS RENEW IN JANUARY. THIS MEANS, YOUR $1000 DENTAL WILL START AGAIN IN JANUARY AND NOT APRIL.

IF YOU WERE IN THE PLAN IN 2014, AND DO NOT RENEW THE INSURANCE OR DO NOT QUALIFY IN 2015, YOUR $1000 DENTAL WILL RENEW IN JANUARY 2015 AT $1000 AGAIN, BUT WILL EXPIRE APRIL 2015. THEREFORE YOU WILL HAVE FROM JANUARY UNTIL APRIL 2016 TO USE THE BASIC $1000 DENTAL .

WE HOPE THIS HELPS. IF YOU HAVE ANY QUESTIONS, PLEASE FEEL FREE TO CALL OR EMAIL US.

IN SOLIDARITY,

MARIA BAUER

PRESIDENT LOCAL 376

50 Jobs per year

since we signed our last contract many casual employees are wondering “what happened to our 50 jobs per year?”

The answer is simple. The wording that was put in place during our last round of bargaining did NOT provide a provision for casual employees to advance into full time CSR jobs.

Here is the article that was added to our last contract. This is in the back of our collective agreement under a “letter of agreement”

LETTER OF AGREEMENT – RE: JOBS
The Employer agrees to post and fill a minimum of fifty (50) PFT bargaining unit jobs per contract year for a total of two hundred (200) PFT bargaining unit jobs during the term of the Collective Agreement as follows:
 Post and fill a minimum cumulative total of 50 jobs by January 2014
 Post and fill a minimum cumulative total of 100 jobs by January 2015
 Post and fill a minimum cumulative total of 150 jobs by January 2016
 Post and fill a minimum cumulative total of 200 jobs by January 2017
The number of positions mentioned above are in addition to any positions declared as part of the PVR process for each year. The Union agrees to withdraw all seventeen (17) 2012 PVR grievances. The Employer agrees to recruit/ hire twenty a total of twenty (20) casual employees at the Logistics Service Centres within sixty (60) days following ratification.
Yours truly, Wayne Zachar Director, Employee Relations, Corporate Health & Safety Services Liquor Control Board of Ontario

Looks good, doesn’t it? It is funny what the mind does when people really want something.We read what is really not there. You ask “what is missing?”

Most people would read this and think,

“this is great! We get 200 jobs we can apply for!”

Another thing people thought was it is better than it was last contract because now they are promising 200 jobs and last contract they only promised 100 jobs.

In fact yes, you are right, we can all apply for these positions and yes the employer agreed to post 200 jobs this time instead of 100 jobs like the last contract!

HERE IS WHAT WAS IN The last contract when the employer agreed to post 100 jobs or 25 per year.

Re: CSR Postings
Dear Ms. Klumper
The employer agrees to post twenty-five (25) full time CSR jobs by September 1st of each year of the contract in effect from April 1, 2009 to March 31, 2013. It is understood that PVR postings in the following March will not be reduced. 
For clarity, twenty-five(25) full time CSR jobs were posted by September 1st, 2009. Twenty-five (25) more full time CSR jobs will be posted by September 1st 2010 , twenty-five (25) more CSR jobs will be posted by September 1st, 2011 and twenty-five(25) more CSR jobs will be posted on September 1st, 2012.
This letter shall expire March 31, 2013.
Sincerely, 
Wayne Zachar, 
Director, Employee Relations

The CURRENT agreement states the posting of “50 PFT bargaining unit jobs” as opposed to posting “25 full time CSR jobs” on the last agreement.

Therefore, all the postings you have been seeing for the Head office positions, Warehouse positions,Product consultants,”C” Store managers,”D”store managers, and Assistant Managers will apply towards the “50 full time jobs posted” as agreed to in our current collective agreement.

Since most of these bargaining unit positions are senior positions, they are awarded in order of SENIORITY for promotions.

When a full time “C” or “d” store manager retires, their position gets posted. (that would be one of the 50 job postings). In most cases, these positions will be filled by another senior position such as an “a” store ASSISTANT manager. Now we see a posting for an “a” store assistant manager (there is another one of the 50 full time job postings) Now, that assistant manager position becomes vacant and so on. in fact, None of these postings were NEW PFT positions but rather they were promotions.

The only time that a job was not posted to replace a retirement or promotion was when the position was filled by either a casual or full time CSR.

So one transfer or retirement resulted into 4 or more postings of existing positions, where In the past, these positions were posted without having any verbiage in our collective agreement.

During this current collective agreement,  the employer is  posting ZERO full time CSR jobs outside of our PVR postings GIVING CASUALS NO WAY TO GET FULL TIME CSR JOBS. DURING tHE 2014 PVR POSTING, our district (district 18) only had ONE PVR posting and it was put into a store (590-MARKHAM)  where a full time employee retired in the same month. tHE RETIRED FULL TIME CSR JOB WAS NEVER POSTED AS A VACANT FULL TIME POSITION. IT WAS REPLACED WITH A PVR POSTINg.

The other fact that has affected the casual workforce is also in the wording of the current article in the collective agreement. The bargaining team along with the members that ratified this contract agreed to withdraw all 17 PVR grievances that were filed in 2012. This was  a huge loss as we waited two years to have these grievances heard and then turned around and withdrew them all !

During this contract, our district has opened MANY new stores, without any new full time CSR jobs getting posted. They staffed the stores with transfers and hiring of new casuals. In fact, this year the employer hired 760 new casuals across the province.

That means, 760 new casuals with no guarantee of hours! 760 employees waiting 10 years plus to get a full time POSITION. The continuation of hiring  the people of Ontario offering nothing but part time precarious work! This is bad for all the people of Ontario, bad for our economy, bad for the future of our children and FAMILIES and the working people of this Province.

The casual workforce is APPROXIMATELY 70% of our company.That is a decrease of up to 10% or more of full time positions during this contract. The full time staff should be concerned with this number as the security of pensions and jobs of our full time workforce is at risk.

The time has come to fight back!

In Solidarity,

Maria Bauer
President Local 376

PVR – Permanent Vacancy Review

The Permanent Vacancy Review is an important part of our collective agreement. This is the process of creating full time jobs for casuals. This is the only way casual employees can progress to a full  time position.

The rules behind the PVR process are in the back of the collective agreement under the “Letter of Understanding – Permanent Vacancy Review”  at the back pages of the collective agreement. HERE

This is what the letter of agreement states

 LETTER OF AGREEMENT – Permanent Vacancy Review
Dear Mr. Coones:
(1) Retail – Permanent Part-Time
(a) (i) All currently employed Permanent Part-Time employees who worked sixteen hundred (1600) hours or more in the previous calendar year, shall be offered Permanent Full-Time employment, by the end of February of the review year, within the geographic posting area in which they are currently employed, provided his/her most recent performance appraisal was rated at a level 3 or better and has a satisfactory attendance and discipline record .
(ii) Should a Permanent Part-Time employee not qualify to be offered Permanent Full-Time employment, he/she shall be considered as per these terms at subsequent annual reviews, via the Regional Local Labour Management Committee.
(iii) Once a Permanent Part-Time employee has been offered Permanent Full-Time employment as per these terms, he/she shall have one (1) week to accept such offer and shall be appointed to Full-Time status within thirty (30) days of acceptance of the Employer’s offer. Failure to respond will be deemed as having not accepted the offer of full-time employment.
(b) Notwithstanding the above, Permanent Part-Time employees who choose notto acceptthe offer of Permanent Full-Time employment shall have the right to continue as Permanent Part Time employees and all rights currently applicable to these employees shall continue to apply.
(2)
(c) It is understood that those positions vacated by Permanent Part-time employees accepting Permanent Full-Time employment shall not be posted. Further, the terms and conditions pertaining to Permanent Part- Time employees will cease to exist when the remaining Permanent Part-Time employees exit the organization.
Permanent Full-Time Vacancies
Following the determination of the number of PPT employees to be offered Permanent Full Time employment, casual hours ofwork and in addition in the case of logistics, seasonal hours ofwork, shall be reviewed during the annual review by the Local-Regional Labour Management Committee. The purpose ofthis review shall be to determine if Permanent Full Time vacancies exist. Specifically, a casual employee’s work and in addition in the case of logistics, seasonal hours of work, shall be reviewed where he/she works in excess of:
(3)
(a) One thousand six hundred (1 ,600) hours or more for casual employees working in positions which, if they were full time, would be in a classification with thirty seven and a half (37.5) prescribed hours of work per work week; (b) One thousand seven hundred (1,700) hours or more for casual employees working in positions which, if they were full time, would be in a classification with forty (40) prescribed hours of work per work week; (c) One thousand five hundred and fifty (1,550) hours or more for casual employees working in positions which, if they were full time, would be in a classification with thirty six and one quarter (36.25) prescribed hours ofwork per work week;
in the previous calendar year.
Exclusions
It is agreed that work resulting from the following shall be excluded from the review:
(a) Hours worked on Sunday
(b) Hours worked on a paid holiday as listed in Article 8.1
(c) Sickness and/or accident, not including LTIP (d) Vacation and leaves of absence including jury duty, bereavement, Union business
(e) Temporary transfers/assignments
(f) Modified work programs
(g) Accommodation as required by legislation
(h) Overtime
(i) Hours worked on the night shift
Work resulting for the reasons listed below shall no __t t be considered exclusions for the purpose of determining whether a permanent full time vacancy exists:
• Special Event Coordinator absences • Where the number of agency workers onsite equal or exceed the number of permanent full time absences on a regular shift defined in the Collective Agreement in a Logistics Facility
(4) Reimbursement
Following this review, there shall be a reimbursement of up to one hundred twenty (120) hours (where a casual employee works in a position which, if it was full time, would be in a classification for which a forty (40) hour work week applies), one hundred twelve and one-half (1 12.5) hours (where a casual employee works in a position which, if it was full time, would be in a classification for which a thirty seven and half [37.5] hour work week applies) and one hundred eight and three-quarters (108.75) hours (where a casual employee works in a position which, if it was full time, would be in a classification for which a thirty six and one-quarter [36.25] hour work
Page 142 of 174
week applies) for those hours that were excluded for vacation replacement. It is understood that to be reimbursed, said work must have been performed and excluded during the review.
(5) General
(a) Should a casual employee, and in addition in the case of Logistics, Seasonal employee, work in the same position and Department/Store as per the hours listed above for reasons other than those listed above, a vacancy shall be declared and posted in accordance with the provisions of the Collective Agreement provided it is not already posted and/or there are no displaced permanent employees in his/her work area.
(b) It is agreed by the parties that said positions shall be filled no later than June 30th of the review year. For the purposes of this Article, “review year” shall mean the year in which the hours were worked .
(i) by February Ist of the review year, the parties will schedule meeting dates for each Regional-Local Labour Management Committee.
(ii) The Employer shall provide the Union with all information pertaining to the review to the Union 2 weeks prior to the annual PVR review meeting.
(c) An employee shall be given up to twenty four (24) hours to accept a position identified through the PVR process. In the event the Employer does not receive notification of acceptance from the employee within the twenty four (24) hours, the offer will be withdrawn.
(d) In the event an employee is offered a PVR position, he/she may decline the first job offer but still shall be eligible for any other available remaining position(s) the employee had identified in her/his original application provided that their seniority permits the individual to do so.
Yours truly,
W. Zachar Director Employee Relations

Local 376 Scholarship !! Deadline fast approaching!

Hello everyone

Do you need $500 ?

All you need to do is a 700 word essay, or a you tube video, or a powerpoint presentation show why the LCBO should stay public and NOT private!

Contest ends February 1, 2016.

Get all the details here!

Members Local 376 Scholarship Application Form – Final (2)

Local 376 awards 2015!

 

Hello everyone

I am proud to announce that we have won two awards at OPSEU’s Editors weekend in November 2015.

The Editors weekend is every two years and we have now won two awards twice! Maria Bauer is the webmaster and wrote the article in the Echo that won “Best News Coverage” in 2015

Here they are!

Editors weekendBest Design website 2015


Fixed Term employees

Hello everyone

I just thought that I would provide everyone with an update. It was brought to my attention at an orientation meeting that the Winter Fixed Term employees were not getting paid for online training. They have been asked to complete  hours of online training prior to their first shift and were told they were NOT being paid for it.

I am not sure how long this has been going on or if other fixed term employees in the past have or have not been paid.  I know in my district alone there are over 100 fixed term employees hired this season while many casual employees are scheduled 5 hour shifts and are being forced to work everyday just so they can pay their bills and take care of their families.

After I brought this to the attention of the union, a memo magically appeared to all store emails (well at least in central region) allowing 4 hours paid for all winter fixed term employees.

 

Even a small achievement is worth bragging about

In Solidarity,

Maria Bauer

President Local 376