It’s About Time! Drafting collective agreement language on scheduling, hours of work, and overtime

In recent rounds of negotiations in the Canadian retail sector, scheduling and minimum guaranteed hours of work for part-time employees were key issues. Meanwhile, excessive overtime has been implicated in various ills from workplace accidents and suicides to declining work-life balance. At the same time, developments in human rights law and an initiative of the federal government to legislate employee-driven flex-time suggest that employers will face greater demands to alter scheduling practices, whatever they may be. In this session experts will explain the legislative “ground rules” for establishing schedules, hours of work, and overtime, discuss the latest contract language that parties have negotiated to address these issues, and provide practical tips for negotiating language that responds to concerns in the workplace.

• Employment standards: What provisions of employment standards legislation apply to scheduling, hours of work, and overtime in jurisdictions across Canada? Which standards can parties to a collective agreement contract out of and on what terms may they do so? What feedback regarding scheduling, hours of work, and overtime has been received by the federal government’s consultation on flexible work arrangements and Ontario’s Changing Workplaces Review? What changes, if any, are likely to be made to employment standards in response to this feedback? Can workplaces realistically offer flexible work schedules to all employees (as seems to be contemplated by the federal government’s consultation)?
• Health and safety issues: What types of health and safety issues should be considered in drafting collective agreement provisions related to scheduling, hours of work and overtime? What types of work schedules and hours of work have been shown to compromise workplace safety or negatively affect workers’ health (especially mental health)? Does the duty imposed on employers by health and safety legislation to “take every precaution reasonable in the circumstances for the protection of a worker” require employers to limit overtime or refrain from certain scheduling practices?
• Human rights concerns: Should employers and unions try to craft policies that anticipate requests for accommodation on the basis of disability, family status, religious beliefs, age, or other protected grounds, or should parties leave accommodation requests to be addressed on a case-by-case basis? How does/should the developing caselaw on family status accommodation affect scheduling and overtime practices? How will collective agreement provisions figure into an arbitrator’s assessment of whether an accommodation affecting scheduling, hours of work, or overtime will constitute undue hardship?
• Contract language: To what degree may an employer (either through unilateral action or direct negotiation with individual employees or groups of employees) alter schedules, hours of work, or overtime practices without the union’s consent? How, if at all, does an implied duty of fairness or reasonableness fetter management’s discretion? What provisions regarding schedule posting, schedule changes, and hours of work are routinely negotiated into collective agreements? What improvements to scheduling practices have parties negotiated in recent rounds of bargaining? What issues should parties address in overtime clauses to reduce confusion and the possibility of arbitration? What type of language in a collective agreement will limit an employer’s ability to impose mandatory overtime or to demand that an employee work more than the maximum statutory limit?