Labour relations legislation in some jurisdictions regulates the introduction of technologi-cal change into the workplace. The legislative provisions range from requiring the parties to submit any disputes relating to technological change to arbitration (New Brunswick) to requiring notice from the employer and mid-term bargaining in four jurisdictions (Canada, Manitoba, Saskatchewan, and British Columbia). In other jurisdictions, including Ontario,
Key Considerations 7-13
Hours of Work and scheduling
1. Will the agreement specify hours of work and shift schedules?
2. Will the agreement guarantee a minimum number of hours that will be available for employees?
3. What lunch or break periods will be provided?
4. What notice is required for a shift change?
5. Will there be provisions for any additional pay for par-ticular shifts?
Key Considerations 7-14
overtime
1. What restrictions, if any, will be placed on the employer imposing overtime: notice to employees, consent of employees, caps on the amount of overtime, etc.?
2. How is overtime defined? Does overtime begin after a specified number of hours per day or per week?
3. What is the rate of overtime pay, and will it vary with the number of hours or the day worked?
4. What rules, if any, will be provided for regarding the distribution of overtime?
5. Will there be any additional overtime compensation such as a meal or transportation allowance?
6. If an error is made in the distribution of overtime, will the agreement specify if the remedy is an opportunity to work or cash?
the legislation does not deal with the issue. In jurisdictions without technological change legislation, the employer will be able to introduce technological change relying on the management rights article, unless the collective agreement imposes limitations. Unions will likely seek collective agreement terms to protect against technological change causing job losses, and employers would prefer to avoid such provisions to be able to maintain flex-ibility and reduce costs.
In any article dealing with technological change, a critical issue will be its definition.
It might be defined narrowly to include only new equipment that causes job loss, or more broadly to include additional matters such as changes in methods of operations and tech-niques to complete the work. The definition can be extremely important because it will determine whether the notice and other protective measures referred to below are availa-ble. In one case, the agreement defined technological change as involving equipment of a different kind or nature, and it was held that a change made to an existing computer system did not fall within the definition.
There is a broad range of protection that might be provided for employees if there is a technological change. The agreement might simply require the employer to give a specified period of notice to the union. The agreement might require the parties to negotiate the implementation and effects of the change and refer the matter to arbitration if they cannot agree. The most restrictive type of provision might provide job guarantees for employees.
Articles might provide for income protection in the event that an employee’s job is reclas-sified as a result of the change, or if the employee is transferred to a lower-paying job.
Another possibility is a provision for retraining and preference in future job openings. If the employee’s job cannot be saved, the agreement might provide for a severance payment.
Key Considerations 7-15 lists some of the issues relating to technological change that must be addressed.
leave
The collective agreement might provide employees with numerous types of leave, some of which have legislated minimums. The employer and the union will have to negotiate what leaves are to be provided and the extent to which any leaves will exceed the minimum the law provides. Key Considerations 7-16 summarizes the key issues relating to leave that have to be addressed.
Jury Duty Legislation provides that the employer must grant leave for jury duty and protect the job, seniority, and benefits of employees. However, the compensation paid to individuals by the court system for jury duty is minimal. Unions may seek to have terms added to the agreement to provide that the employer will pay any difference between the allowance paid to jurors and the employee’s pay.
Bereavement leave Employees are entitled to bereavement leave as provided in the employment standards legislation governing their workplace. The legislation usually pro-vides for leave in the event of the death of specified relatives, most commonly the employ-ee’s spouse, child, parent or guardian, sibling, grandchild, or grandparent. The length of the Key Considerations 7-15
technological change
1. Will the agreement contain any provisions regarding technological change?
2. What is the definition of technological change?
3. What limitations are placed on the introduction of techno-logical change: notice, negotiation and arbitration, job guar-antees, income protection, retraining, severance payments?
173 T h e C o l l e c t i v e A g r e e m e n t
leave varies across jurisdictions from one to five days, and it may depend on the nature of the relationship. Most bereavement leave provided in legislation is unpaid; however, there are exceptions. Federally regulated employees who have been employed for at least three months are entitled to three days paid bereavement leave.
maternity leave Employment standards legislation provides for unpaid maternity leave that ranges from 15 to 18 weeks depending on the jurisdiction. Employees entitled to maternity leave may also be entitled to additional unpaid parental leave. The unpaid leave should not be confused with the monetary benefits provided by the federal Employment Insurance Act. In some jurisdictions, employees are entitled to maternity leave as soon as they start employment. In other jurisdictions the person must have been employed for a minimum period of time. The legislation also contains rules regarding notice to commence the leave and to return to work, restrictions on when the leave can commence, and provi-sions regarding extension of the leave. Any collective agreement terms regarding maternity leave must at least meet the standards provided for in the relevant legislation, and the union may seek leave provisions greater than the legislated minimum.
parental leave Employment standards legislation provides for parental leave that ranges from 34 to 52 weeks, depending on the jurisdiction, and is available for both birth and adoptive parents. In some jurisdictions, the leave must be split between the parents; in others, including Ontario, both parents are entitled to the leave. There are rules regarding eligibility that vary across jurisdictions. The legislation sets out requirements regarding notice to commence the leave, notice to return to work, and restrictions on when the leave can commence. Any collective agreement terms regarding parental leave will have to at least meet the standards provided for in the relevant legislation and should address the issues referred to in Key Considerations 7-16.
sick leave Although a few jurisdictions provide for unpaid sick leave (Canada, New Brunswick, Newfoundland and Labrador), there is no legal requirement for employees to be paid while they are off sick. Employees have entitlement only to sick pay provided in the agreement. The agreement might provide for a system of sick leave credits in which employ-ees will accumulate a certain number of sick days for each week or month worked, and the
Website for maternity and parental
1. What leave will be provided for in the agreement?
2. Will leave exceed any minimum provided for in legislation?
3. Jury duty leave. What amounts, if any, will the employer be required to pay employees?
4. Bereavement leave. How long is the leave? Is the leave paid or unpaid? Whose death will entitle the employee to leave? What happens if a death occurs while the employee is on vacation or some other leave?
5. Maternity leave. How long is the leave? What notice is required to commence the leave? What notice is required to return from the leave? What payments is the employee entitled to during the leave; for example, to what extent will the employer have to “top up” ben-efits provided by employment insurance?
6. Parental leave. How long is the leave? What notice is required to commence the leave? What notice is
required to return from the leave? What payments is the employee entitled to during the leave? For example, to what extent will the employer have to “top up” ben-efits provided by employment insurance?
7. Sick leave. If sick credits are used, how many days per month are allowed? What happens to any remaining cred-its when employment is terminated? If a leave with pay is provided, how long is the leave and what is the rate of pay?
8. Union leave. Will the agreement provide for both short- and long-term leave? What is the length of any leave?
How much notice is required? How many employees at one time can be on leave? Is there a right to the leave or does the employer have discretion to deny it?
9. Personal leave. Will the agreement provide for personal leave? What limits, if any, will be placed on the employ-er’s discretion to grant the leave? Will there be limits on the length of the leave?
days can later be used if the employee cannot work. The employee will be entitled only to the sick credits accumulated. Employers may prefer to avoid this type of system so that they do not have to deal with the costs of paying out unused sick credits on termination. Also, some employees might abuse the system if they think they have sick credits accumulated that they should use even though they are not sick. Instead of a credit system, the agree-ment might provide for leave with pay, specifying the length of the leave and the amount of the pay. It might provide that the length of the leave increases with seniority and the pay diminishes with a longer leave. For example, the pay provided might be 100 percent of regular pay for the first week and 75 percent of pay for an additional 10 weeks.
union leave Collective agreements commonly provide for unpaid leave for union officers (e.g., the president of a union local) to attend to union matters. This type of leave can be either short-term—to allow for attendance at union conventions and other meetings—or long-term—
to allow for taking on a union executive position or serving the union in some other manner.
personal leave In addition to the various specified leaves referred to, the agreement may provide for additional personal leave to attend to sick family members, to serve a jail sen-tence, or for other matters. Personal leave is often stated to be at the employer’s discretion—
that is, the employer may grant the leave but does not have to. An employer might be surprised to find out that some arbitrators have required employers to act reasonably when they consider whether to grant such leave. This means that even though an agreement states that the employer may or may not grant the leave, it will have to show a valid reason to deny it. In one case, an arbitrator held that an employer who denied a leave to serve a jail sen-tence had violated the personal leave article in the collective agreement because it had failed to establish it would be harmed if it granted the leave.10 Unions would prefer that the agreement confirm that the employer may not unreasonably deny a leave. Employers would prefer that the agreement provide that the employer has sole discretion to grant or refuse leave, and the decision cannot be grieved, provided that it is made in good faith.