- May 25, 2021
- Collective Agreement Interpretation
This Grievance concerns a new scheduling practice implemented in 2013 by the Employer at the Canadian National Exhibition (“CNE”) which runs for an 18 day period each year. Until 2013 some employees assigned to shows at the CNE worked 18-25 days without a day off during that period. In 2013, the Employer changed the schedule to provide for days off.
The Employer argued that it had to change the schedule in order to comply with Section 18(4) of the Employment Standards Act, 2000 (the “ESA”) which provides for a 24 and 48 hour break in every week and two weeks respectively. IATSE argued that the previous scheduling practice does not violate the ESA and furthermore argued that the scheduling practice is a longstanding and unchanged employer practice that cannot be changed until the expiry of the collective agreement.
The Arbitrator allowed the grievance. In so doing, the Arbitrator held that Section 18(4) of the ESA is a provision that can be opted out of by an employee in this instance. With respect to the estoppel argument, the Arbitrator held that “all the elements of an estoppel are present, given the longstanding and consistent practice of scheduling.” As a result, the Arbitrator ordered that the Employer is required to revert to the pre-2013 scheduling practice with respect to the opportunity to work during the CNE period. Therefore, “employees who volunteer to work the hours of this schedule, in accordance with the terms of the practice, shall be entitled to do so”.