bill 148 and the collective agreement€¦ · to bill 148, the fair workplaces, better jobs act,...

Bill 148 and the Collective Agreement

Presented by: Region 3 Vice‐President, Labour Relations Portfolio, Andy Summers, RN,

& Senior Legal Advisor, Simran Prihar

Hospital Contract Interpretation Teleconnect, February 20, 2018

Background

• On November 27, the Ontario Government gave Royal Assent to Bill 148, the Fair Workplaces, Better Jobs Act, 2017.

• Amends both the Employment Standards Act (ESA) and the Labour Relations Act (LRA).

• Most of the amendments came into effect on January 1, 2018, but some changes are phased in on later dates.

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Changes to ESA Leaves

• Pregnancy leave for a miscarriage or stillbirth has been increased from six weeks to 12 weeks (s. 47(1)(b)(ii)).

• Existing parental leave provisions are increased to bring them in line with the new Employment Insurance (EI) parental leave provisions. Now, instead of 35 weeks (or 37 without pregnancy leave) employees can take up to 61 (or 63) weeks. This came into effect December 3, 2017 (s. 48).

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• Family medical leave is being increased from eight weeks in a 26‐week period to 28 weeks in a 52‐week period (s. 49.1).

• The existing critically ill child care Leave is expanded to include critically ill adults who are family members, as set out in the section. It is now called critical illness leave and provides up to 17 weeks for adults and up to 37 weeks for a minor child (s. 49.4).

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• Previously, there was only one combined child death and disappearance leave for 52 weeks. Now: The new child disappearance leave has increased from

52 weeks to 104 weeks if your child disappears and it is probable that s/he disappeared due to a crime. Again, with the exception of if the parent or child is a party to a crime in relation to the disappearance. (s. 49.6).

The new child death leave states employees may take up to 104 weeks if their child dies for any reason, other than if the employee is charged with a crime involving the death, or the child was a party to a crime in relation to his death (s. 49.5).

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• NEW domestic or sexual violence leave. Employees may take up to 10 days and up to 15 weeks of leave under this section.

• The first five days of such leave will be paid at the employee’s regular wage rate.

• This section outlines specific purposes for which you may take the leave and is subject to evidence reasonable in the circumstances (s. 49.7).

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Personal Emergency Leave (PEL)

• This leave has been changed in three ways: First, all employees are now entitled to the leave,

whereas employers with less than 50 employees were previously exempted.

Second, although there are still only 10 days of leave, the first two days of this leave are now paid days. The paid days must be taken first in a calendar year, and the eight unpaid days may be taken after.

Third, for these 10 days, the employer can no longer request a doctor’s note (s. 50).

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PEL & Sick Notes

• You will likely get questions from your members about whether they have to bring in doctors notes for any sick days starting in 2018.

• As PEL days cover more than just medical absences, it is important to first note that where a PEL day is taken, the employer may require evidence “reasonable in the circumstances” to prove entitlement to the leave, but the employer cannot require that evidence to be a doctor’s note.

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PEL & Sick Notes• However, if PEL is taken for personal illness, injury or medical

emergency, whether a member has to bring in a note or not depends on the collective agreement language that applies to her/him.

• An arbitrator will interpret the language of the entire scheme of sick leave provisions that apply to a given employee in order to determine whether the requirement to bring in a note is allowed under a particular collective agreement, using a greater right or benefit analysis.

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PEL & Sick Notes

• Beyond PEL days, sick notes are still required under the collective agreement for a number of things, for example: Paid sick time. Accommodation requests. Attendance management.

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Greater Right or Benefit

• What is a greater right or benefit analysis?

• The ESA, Section 5(2) states:If one or more provisions in an employment contract or in another Act that directly relate to the same subject matter as an employment standard provide a greater benefit to an employee than the employment standard, the provision or provisions in the contract or Act apply and the employment standard does not apply.

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• Practically speaking, for full‐time members: Under the hospital contract, a full‐time member may have

a greater right or benefit than two paid PEL days as they have access to paid sick time and paid bereavement leave.

However, if the member wishes to take a paid PEL day for a matter not covered under the collective agreement and is denied because she took two sick days or two bereavement days under the collective agreement previously, this should be grieved.

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• Practically speaking, for part‐time members: The only greater right or benefit in the hospital central

agreement is paid bereavement leave. Our position is that part‐time members get two paid PEL

days for the other reasons enumerated in the ESA. Note: Local provisions may provide other benefits not

accounted for in these examples.

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Changes to Parental Leave• On December 3, 2017, the new option to extend parental

leave EI benefits for 61 weeks instead of 35 weeks came into effect.

• The new rules do not impact pregnancy leave. Employees taking pregnancy leave will still be paid EI benefits of up to 55 per cent of their insurable earnings (or the maximum) for the 15 weeks of pregnancy leave by the government, and there is no impact on the SUB top‐up under the collective agreements.

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Changes to Parental Leave

• Any parent claiming the parental leave EI benefits now has the option of taking 61 weeks (or 63 weeks if they haven’t taken pregnancy leave) instead of the 35 (or 37) weeks that apply to all those taking the leave prior to December 3, 2017.

• Instead of receiving up to 55 per cent of their insurable earnings, these parents will receive up to 33 per cent of their insurable earnings for the 61 weeks, and this impacts SUB top‐up.

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• Under Article 11.08(e) of the hospital central collective agreement, the employer agrees to pay a supplemental employment benefit which is “equivalent to the difference between 84 per cent of the nurse's regular weekly earnings and the sum of her or his weekly EI benefits and any other earnings.”

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• It is ONA’s position that under this particular collective agreement, the employer is responsible to cover the increased cost of the top up as a result of the legislated changes.

• While this may be challenged by employers and/or change in the upcoming round of central negotiations, as the language currently stands in the hospital central collective agreement, the employer is obligated to top up from 33 per cent to 84 per cent for 12 weeks, should a given employee choose the longer parental leave.

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New Scheduling Provisions

• There are new provisions around scheduling which come into effect on January 1, 2019.

• Some of these changes will not impact ONA members in the hospital sector: The new right to refuse a demand to be on work or on call

if less than 96 hours’ notice is given. The new right which requires being paid three hours for

being on call and not called in.

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• Both provisions are subject to an exception which covers health‐care professionals. The ESA exempts any employee who is on call “for the purposes of ensuring continued delivery of essential public services, regardless of who delivers the services.” It is highly likely that ONA members in the hospital sector will fall under this definition.

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• There are two provisions that are not subject to this exception, but will still be subject to the greater right or benefit analysis: A new shift cancellation provision, which stipulates that

an employee be paid three hours if their shift is canceled with less than 48 hours’ notice.

A new provision stipulating that an employee who goes in to work be paid a minimum of three hours if they work less.

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• Both of these could potentially impact some ONA members, depending on the language of the particular collective agreement.

• The hospital central agreement likely provides a greater right or benefit for both, but shift cancellation cases will need to be assessed on an individual basis for part‐time members.

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Resources

• The text of Bill 148 can be found on the web at:http://www.ontla.on.ca/bills/bills‐files/41_Parliament/Session2/b148ra_e.pdf

• Any questions should be directed to your ONA Labour Relations Officer.

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Thank you!85 Grenville Street, Suite 400, Toronto, ON M5S 3A2Toll Free: 1‐800‐387‐5580 Toronto: 416‐964‐8833

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Copyright©2018 Ontario Nurses’ Association

bill 148 and the collective agreement€¦ · to bill 148, the fair workplaces, better jobs act,...

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