May 1, 2018
Recent amendments to the Employment Standards Act, 2000 (the “Act”) brought about by Bill 148 have introduced a new requirement affecting most Ontario employees that the first two (2) personal emergency leave days (“PEL days”) taken per calendar year must be paid.
For the many employers who already provide generous paid leave entitlements to employees, the introduction of paid PEL days raises the question of when a collective agreement or employment contract will be found to provide a greater right or benefit to employees than the new paid PEL days.
The recent decision of Arbitrator Morton Mitchnick in USW, Local 2020 and Bristol Machine Works Ltd. (GB-01-18), Re  OLAA No 88, provides some useful guidance to employers on how the greater right or benefit analysis may be applied post-Bill 148.
In Bristol Machine Works, the collective agreement provided an insurance welfare program to employees with at least 18 months of service, which included 17 weeks of weekly indemnity benefits paid at 65% of wages as well as LTD benefits. The union argued that certain employees who had been absent due to illness were entitled to the two (2) new paid PEL days over and above the collective agreement entitlements. The employer argued that the insurance welfare program constituted a greater right or benefit to employees than the two (2) paid PEL days, and that as a result the employees were not entitled to paid PEL days pursuant to subsection 5(2) of the Act.
On the facts, Arbitrator Mitchnick agreed with the employer, concluding that the income protection for sickness provided by the collective agreement was a greater right than the minimal pay protection provided to employees under the Act. As a result, only those employees who had less than 18 months of service, and thus could not access the insurance welfare program under the collective agreement, were entitled to paid PEL days under the Act.
While each case needs to be assessed on its own facts, the Bristol Machine Works decision provides some reassurance that the statutory amendments imposed by Bill 148 will not necessarily give rise to an automatic enhancement to sick leave benefits provided to unionized employees over and above those which were obtained through bargaining.
If you have any questions about this decision or how the Bill 148 amendments may be interpreted in light of your collective agreement, please do not hesitate to contact a Mathews Dinsdale lawyer.