With respect to paid leave, is your collective agreement really equivalent or more advantageous than the Labour Standards Act?
Introduction: the two days of paid leave
Since January 1, 2019, the Act respecting Labour Standards1 (the “LSA”) provides that an employee with at least three months of continuous service with the same employer is entitled to ten days’ leave per year, the first two of which must be remunerated (“Paid Leave”), for any of the following reasons:
- family obligations relating to the care, health or education of the employee’s child or the child of the employee’s spouse;
- family obligations as a caregiver to a relative or other person whose health status requires it;
- absences due to illness or accident;
- absences due to an organ or tissue donation;
- absences due to domestic or sexual violence or a criminal offence.
The balance between the LSA and the collective agreement
In a unionized environment, where many collective agreements provide for more favourable terms than the LSA in terms of paid flex days or personal days, the question arose as to whether such conditions satisfied the entitlement to Paid Leave.
For instance, what if a collective agreement provides for two or more paid flex days or personal days? Does this collective agreement have the effect of granting an employee a condition of employment that is equivalent to, or more advantageous than, that provided for in the LSA?
In such cases, there is no need to make any changes to the collective agreement, right?
While this is a viable scenario in some circumstances, it could be risky to opt for this solution without first asking a few questions.
A recent ruling on this issue
Arbitrator Robert Côté’s reasoning in the recent decision Teamsters Québec, local 1999 c. Cascades Emballage Carton-Caisse Drummondville2 highlights certain elements to consider in such situations, as he allowed the grievance filed by the union. Contrary to the employer’s claims, the arbitrator held that the collective agreement did not grant employees a Paid Leave entitlement that was at least equivalent to that provided for in the LSA. It should be noted that the case law on this issue is divided, hence the relevance of the following practical advice.
Practical advice arising from the arbitral award: key questions to consider
Considering the arbitrator’s reasoning, a few relevant questions are worth asking in order to determine whether the leave provisions in a collective agreement satisfy the Paid Leave entitlement.
- Does the collective agreement contain a clause whose purpose or nature is comparable to the reasons for absence associated with Paid Leave?
To answer in the affirmative, the clause must absolutely allow an employee to be absent without loss of pay in the specific situations set out in the LSA. For example, a clause that allows an employee to take two (2) personal days to go fishing is undoubtedly a good condition of employment but does not meet the objective of the LSA. What happens if an employee who has already exhausted his or her bank of personal days must be absent for one of the reasons provided for in the LSA? In this scenario, one may think that the purpose or nature of the clause does not meet the legislator’s social objectives.
- Does the clause in the collective agreement impose more restrictive conditions than the LSA?
Under the LSA, an employee is entitled to Paid Leave:
1. once he or she is credited with three months of continuous service with the employer; and
2. when he or she is absent for one of the reasons specified.
Any other requirement imposed by the text of the collective agreement, such as a firm deadline for notifying the employer or a requirement to obtain prior authorization, could be considered more restrictive than the conditions set out in the LSA.
- A more flexible approach to applying the terms of your collective agreement since January 1, 2019: can you demonstrate a new practice that is consistently applied?
Some organizations have been tempted to adopt a new practice for applying the flex or personal days provided for in their collective agreements in order to meet the LSA requirements for Paid Leave.
Such an approach, while possible, will require the cooperation of the union.
It will also be incumbent on the organization to ensure that this new practice is consistent, uniform, and widespread. Case law teaches us that a “case-by-case” approach by management to granting Paid Leave generally indicates that the new practice has not been adequately implemented and does not meet the minimum requirements set out in the LSA.
Our Labour and Employment Law team can help you find creative solutions to address this issue.
1 An Act respecting Labour Standards, CQLR c. N-1.1.
2 Teamsters Québec, local 1999 c. Cascades Emballage Carton-Caisse Drummondville, a division of Cascades Canada ULC (union grievance), 2020 QCTA 612.