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.
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|
|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.
Maria Bauer – President Local 376
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