Unionized employees may have various common law or contractual rights and entitlements, but generally these have to be acted upon by the union which is a party to the collective agreement.
Unionized employees who are dissatisfied with their employer should contact the union representative, or a lawyer, without delay. Collective bargaining agreements (union contracts) often have very narrow time frames within which action must be taken. Issues arising under collective bargaining agreements can be complex.
Collective agreements often contain different or more onerous terms than those set out in the ESA. In collective agreements, the parties can contract out of certain ESA limitations (ESA, s 3) regarding matters such as hours of work, overtime, statutory holidays, vacations, and vacation pay. As long as they have been addressed by the collective agreement, entire sections of the ESA might not apply under a collective bargaining agreement.
Employees are entitled under the ESA to certain basic protections. These are not permitted to be negotiated away in a collective agreement. These basic protections include matters such as employment of children (ESA s. 9), payment of minimum wage (ESA s. 16), deductions (ESA s. 21), leaves of absence such as pregnancy, parental and other leaves (ESA, part 6), group terminations (ESA s. 64), exceptions to s. 64 (ESA s. 65), and rules about notice of termination and payment on termination (ESA s. 67, s. 68).
Under s.3 of the ESA, where a collective agreement contains any provision respecting seniority retention, recall, termination of employment or layoff, the provisions regarding liability for length of service (statutory minimum payment upon dismissal, ESA s.63) does not apply. If a collective agreement does not contain any provision respecting these matters, s.63 is deemed by s.3 to be incorporated in the collective agreement.
Where there is a collective agreement, the enforcement of matters relating to the ESA is normally through the grievance procedure.
A unionized employee who feels his or her union is not adequately representing him or her ought to seek legal counsel without delay.
For more information, Employment Standards Branch has prepared a fact sheet on collective agreements. The Employment Standards Branch acknowledges that its fact sheets are prepared for general information purposes. They do not constitute legal advice. If your case involves these issues, legal advice from an experienced lawyer should be sought.
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