Piecing Together the Puzzle: When do employment standards apply instead of collective agreement benefits (and vice-versa)?

Collective agreements frequently provide greater benefits than employment standards legislation, which sets minimum floors of statutory protection. But the question of which rights prevail in cases of conflict remains hotly contested between unions and employers. This session will provide expert guidance on this issue, reviewing cases that arise in various contexts, including leaves of absence, vacation pay, and minimum wage rates. Panelists will also bring you up-to-date on the most important recent legislative changes to employment standards legislation.

• What key legislative changes have been made to employment standards statutes in recent months, and what changes are on the horizon?
• Where there is a conflict between statutory and contractual obligations, which one prevails? What approach do arbitrators take where a collective agreement is silent about a matter covered by employment standards legislation?
• In which jurisdictions does employment standards legislation contain a “greater benefits” clause, stipulating that the collective agreement prevails where it provides a superior right or benefit to employment standards legislation? What does the law provide in other jurisdictions? Can unions and employers negotiate collective agreement provisions that contract out of certain employment standards rights/obligations?
• What approach do arbitrators take to determine whether a contract provides a “greater benefit” than employment standards legislation (i.e. an item-by-item or a “basket of benefits” approach)?
• In what circumstances do arbitrators consider that leave provisions in collective agreements are in fact superior to legislated standards? Can an employer reduce an employee’s statutory sick leave or family responsibilities leave by the number of floater or lieu days to which the employee is entitled under the collective agreement? Do contract clauses that refer to leaves specified in employment standards legislation survive the repeal of those provisions? For example, in Ontario, what are the effects of clauses that refer to personal emergency leave, which are subject to repeal on January 1, 2019?
• What considerations do arbitrators take into account when comparing applicable employment standards and collective agreement provisions regarding holidays and holiday pay in determining which one provides a superior benefit? In jurisdictions without a “greater benefits” provision, are statutory holidays deemed to be incorporated into the collective agreement?
• How do minimum wage rate increases affect collective agreement provisions? For example, if a collective agreement includes a pay differential for new hires and more experienced employees based on the old minimum wage rate, is the employer required to increase wages in order to maintain the pay differential?
• Do arbitrators always have jurisdiction over grievances alleging that an employer violated employment standards legislation?
• Does the doctrine of estoppel, which provides that a party may be held to past practice despite its strict legal rights, apply where an employer’s practice violates employment standards legislation?