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eweazel

join:2008-12-09
Etobicoke, ON
reply to elwoodblues

Re: Ontaro Labour Law question

The reality is you can fight it, but once he signs the document it is biding. As long as they pay him what he is entitled to, there are no laws being broken.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4

2 edits
reply to eweazel
said by eweazel:

Yes it is, this is the basis of my job, here is a quote on

You can agree, in writing, to work on a specific holiday each time that holiday comes up. As part of that document, it is agreed upon how you will be paid, either premium time or time off in lieu. This is a completely different scenario, and is perfectly valid. In contrast, you cannot broadly sign away the right to not be assigned a shift on a statutory holiday without prior consent as part of an employment contract. If an employment contains that provision, it is invalid.

If this is part of your job like you claim, you would already know that. Perhaps you work for one of the many HR departments with similar clauses in their employment agreements only to have the MOL set them straight when I decided I didn't want to work on Boxing Day?

Edit - Furthermore, I should add, that even if you agree to work a stat holiday in writing, you still have the right to change your mind no less than 48 hours prior.

said by »www.e-laws.gov.on.ca/html/statut···tm#BK116 :
Right to refuse work
73. (1) An employee may refuse to work on a public holiday or a day declared by proclamation of the Lieutenant Governor to be a holiday for the purposes of the Retail Business Holidays Act. 2000, c. 41, s. 73 (1).

Same
(2) An employee may refuse to work on a Sunday. 2000, c. 41, s. 73 (2).

Notice of refusal
(3) An employee who agrees to work on a day referred to in subsection (1) or (2) may then decline to work on that day, but only if he or she gives the employer notice that he or she declines at least 48 hours before he or she was to commence work on that day. 2000, c. 41, s. 73 (3).
In other words, your entire argument is moot. Those clauses aren't binding because you can change your mind up to 48 hours prior. This is why most employers will bring you those agreement sheets two days before the holiday.


donoreo
Premium
join:2002-05-30
North York, ON
Looking at it, the language is vague. It does not say for each public holiday, so I can see why they may interpret it as covering all.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4
said by donoreo:

Looking at it, the language is vague. It does not say for each public holiday, so I can see why they may interpret it as covering all.

The law is clear, they can't force him into it even if it is in his contract.

They can force you into overtime so long as they meet all other regulations related to consecutive days worked and time off between shifts, but since this costs employers more money they tend to use that sparingly.


eweazel

join:2008-12-09
Etobicoke, ON
Reviews:
·TekSavvy DSL
reply to Gone
said by Gone:

said by eweazel:

Yes it is, this is the basis of my job, here is a quote on

You can agree, in writing, to work on a specific holiday each time that holiday comes up. As part of that document, it is agreed upon how you will be paid, either premium time or time off in lieu. This is a completely different scenario, and is perfectly valid. In contrast, you cannot broadly sign away the right to not be assigned a shift on a statutory holiday without prior consent as part of an employment contract. If an employment contains that provision, it is invalid.

If this is part of your job like you claim, you would already know that. Perhaps you work for one of the many HR departments with similar clauses in their employment agreements only to have the MOL set them straight when I decided I didn't want to work on Boxing Day?

Why get personal with me, you dont like what is being said, thats your right, but in reality jobs like these try to scare these people into signing. Not saying its right, but thats how they like to play the game. You do have a right to refuse to work on holidays, but it wont stop them from trying to schedule him in. Especially in days like boxing days, and if they are in the "Tourist zone" As long as they pay him or give him time off if he does work, it is legit.

Thats what I am trying to say, he is not signing away his ESA rights, but he is agreeing to terms, that no way would I agree nor sign up for. They can get creative is letting him go if he does sign it and wont play ball, and thats why most companies try to get this in writing.



eweazel

join:2008-12-09
Etobicoke, ON
Reviews:
·TekSavvy DSL

3 edits
reply to Gone
said by Gone:

said by donoreo:

Looking at it, the language is vague. It does not say for each public holiday, so I can see why they may interpret it as covering all.

The law is clear, they can't force him into it even if it is in his contract.

They can force you into overtime so long as they meet all other regulations related to consecutive days worked and time off between shifts, but since this costs employers more money they tend to use that sparingly.

We dont work on holidays here, but during our busy season "Halloween" people tend to work more hours.

MOL decided to investigate us last year, but because we are closed on holidays and pay the employees and treat them well bonuses for every 8 hours they work during the busy season etc. we passed. But the investigator did say for us to cover our asses from any more coplaints we should get everyone to sign a letter as the company mentioned above has done and that it would cover us. It was an option, and this could be one investigators way of viewing things.

So seeing how that is the case, I can see a company scheduling you for a holiday and its up to the employee to say no within the 48 hours as Gone has mentioned.

Some companies will try to push the limits as much as possobile. Its up to the employee to fight it, sadly thats who it works in this country and with free enterprise, Its very very wrong treating employees like that, but they still try and most get away with it.


Rifleman
Premium
join:2004-02-09
p1a
reply to elwoodblues
I got a buddy working 7-11s since november and figures to be done in june. Any hours over 36 is double time and paid supper as well.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4
reply to eweazel
said by eweazel:

Why get personal with me, you dont like what is being said, thats your right, but in reality jobs like these try to scare these people into signing. Not saying its right, but thats how they like to play the game. You do have a right to refuse to work on holidays, but it wont stop them from trying to schedule him in. Especially in days like boxing days, and if they are in the "Tourist zone" As long as they pay him or give him time off if he does work, it is legit.

The whole point I was making is that it isn't binding. Sure, they can schedule him in and they can cry to him about what he signed, but so long as he gives them the appropriate notice they can't force him to work that shift. You said it was binding, but really it's not.

The right to refuse to work a stat holiday is enshrined in the ESA. Even if you sign a document saying you agree to work those holidays, you still have every right to say no with appropriate notice. In effect, you can't "sign away" that right to not work on a stat holiday.

This isn't personal. This is just the law.


eweazel

join:2008-12-09
Etobicoke, ON
Reviews:
·TekSavvy DSL
said by Gone:

said by eweazel:

Why get personal with me, you dont like what is being said, thats your right, but in reality jobs like these try to scare these people into signing. Not saying its right, but thats how they like to play the game. You do have a right to refuse to work on holidays, but it wont stop them from trying to schedule him in. Especially in days like boxing days, and if they are in the "Tourist zone" As long as they pay him or give him time off if he does work, it is legit.

The whole point I was making is that it isn't binding. Sure, they can schedule him in and they can cry to him about what he signed, but so long as he gives them the appropriate notice they can't force him to work that shift. You said it was binding, but really it's not.

The right to refuse to work a stat holiday is enshrined in the ESA. Even if you sign a document saying you agree to work those holidays, you still have every right to say no with appropriate notice. In effect, you can't "sign away" that right to not work on a stat holiday.

This isn't personal. This is just the law.

That is right, and you are bang on, on that argument. But it becomes a very grey area if signed. We can all agree that he should not sign the document anyway.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4
Well, signing it is irrelevant. So long as he tells his employer he refuses to work a stat holiday 48 hours prior, it's fair game. Email is good for this kind of stuff. If he has proof he told them 48 hours prior the employer has no recourse even if they schedule him. To quote what the MOL told me, "just don't show up, and call us after if it's an issue."

If it were me, I probably would have crossed it out and initialled it, but it really makes no difference in practice.


elwoodblues
Elwood Blues
Premium
join:2006-08-30
Somewhere in
kudos:2
Reviews:
·VMedia
Regs or no regs, any company that abuses it's workers, will find a way to get rid of people. Before I jumped ship at the Shack, they had reduced my hours to under 24, it was a sure sign they were after me. Top salesperson in the country, but I wouldnt play their little games at one point they tried to make battery add on sales a condition of your employment. ( must sell a certain percentage of sales in batteries).
--
No, I didn't. Honest... I ran out of gas. I... I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. There was an earthquake.......

peterboro
Avatars are for posers
Premium
join:2006-11-03
Peterborough, ON
reply to eweazel
said by eweazel:

I had a guy try to get me to not only work almost every day, but he wanted me to do at least 65 hours per week and be hush hush about it.

2 points;

1. You can't contract out of the minimum statutory requirements in Ontario and the same goes if there is a collective agreement.

2. If dealing with a slimy employer do the overtime they want you to be hush hush about then file a compliant when you leave or just before the statutory time limit to do so. I have done this twice for people and got all the overtime paid out with interest.


Rifleman
Premium
join:2004-02-09
p1a

1 recommendation

It's a crying shame people would have to do this in Canada at all. The anti union folks can rant all they like but working like you just described may soon be the norm.

peterboro
Avatars are for posers
Premium
join:2006-11-03
Peterborough, ON

1 recommendation

said by Rifleman:

It's a crying shame people would have to do this in Canada at all. The anti union folks can rant all they like but working like you just described may soon be the norm.

In the one case I told the guy and he told the employer what they were doing was illegal and they were like, "F-off and move on if you don't like the hours" so he said, "Whatever dude" and kept logging the hours with copious notes and cleaned up a year later with thousands in overtime. Silly little man employer.


DKS
Damn Kidney Stones
Premium,ExMod 2002
join:2001-03-22
Owen Sound, ON
kudos:2
reply to Rifleman
said by Rifleman:

It's a crying shame people would have to do this in Canada at all. The anti union folks can rant all they like but working like you just described may soon be the norm.

What is more common, especially in the hospitality industry, is that you are reduced in hours to the bare minimum (maybe one shift a week) as a "hint" you need to move on.
--
Need-based health care not greed-based health care.


Rifleman
Premium
join:2004-02-09
p1a
reply to peterboro
I worked at a corner store at 15. The bitch owner wanted me to sit at home "on call" for free. Of course I took off during the day and got blasted the next day. I quit and refused to let that happen again. It did once in my trade non union and I wrote about it here. I was fired---quit there too.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4

1 recommendation

said by Rifleman:

The bitch owner wanted me to sit at home "on call" for free.

My last employer tried to pull that on me. I simply said I refused, and nothing - at least at that particular time - became of it. I didn't expect full salary for being on call, but I'll be damned if I should sit next to a phone and not be free to go anywhere I want on my "day off" without being compensated for it.

This is the kind of stuff that I try and drill into the heads of the management at the store. ESA stuff is important. HRC stuff is even more so for the simple reason that there is no defined answer and that you usually need to not be a prick about things to not get in trouble. Common courtesy and understanding that one doesn't own an entire employees life is also another. This, thankfully, has never been a big issue for us but there have been a few situations (particularly on the HRC side of things). Some people simply don't get it until someone on equal footing explains to them not only what the actual law is, but how much it can cost them for not doing it.

peterboro
Avatars are for posers
Premium
join:2006-11-03
Peterborough, ON
said by Gone:

This, thankfully, has never been a big issue for us but there have been a few situations (particularly on the HRC side of things).

HRC sec. 34 or an OHSA sec. 50 will be 10k to 20k irrespective of damages awarded.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4
Oh god, OHSA, that's another situation entirely. I was hoping to enjoy my evening.

peterboro
Avatars are for posers
Premium
join:2006-11-03
Peterborough, ON
said by Gone:

Oh god, OHSA, that's another situation entirely. I was hoping to enjoy my evening.

Given your posting history just be glad Bill 168 amendments don't apply in here.


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4
They don't apply in the legislature, either.

graniterock
Premium
join:2003-03-14
London, ON
Reviews:
·WIND Mobile
·TekSavvy Cable
reply to elwoodblues
said by elwoodblues:

They are 11hrs shifts (of which they pay 10) at least 5 days a week.

That extra hour: is it free labour or is it an upaid break / long lunch?


Gone
Premium
join:2011-01-24
Fort Erie, ON
kudos:4
They would be required to provide two meal breaks for a shift that long so I assume it would be two half hour unpaid breaks.

quickdry21

join:2009-05-15
reply to elwoodblues
I'm currently working 14.5 hour days, 21 days in a row in the Alberta oil patch.

I've always wondered how employers here could get away with that. Nothing I've read about Alberta labor laws allow for it.


Rifleman
Premium
join:2004-02-09
p1a
Straight time? Insane!


elwoodblues
Elwood Blues
Premium
join:2006-08-30
Somewhere in
kudos:2
Reviews:
·VMedia
reply to graniterock
said by graniterock:

said by elwoodblues:

They are 11hrs shifts (of which they pay 10) at least 5 days a week.

That extra hour: is it free labour or is it an upaid break / long lunch?

From what I understand, it's how you look at it, for them it's an unpaid break, but considering it's commissioned sales, taking an hour away from the floor could hurt you.
--
No, I didn't. Honest... I ran out of gas. I... I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. There was an earthquake.......

graniterock
Premium
join:2003-03-14
London, ON
Reviews:
·WIND Mobile
·TekSavvy Cable
reply to Gone
If that's the case I'm wondering why that's such a bad thing? There seemed to be a bit of a negative reaction to that on the first page. I've heard of some employers doing split shifts (ie 4 hours work, 4 hour break, 4 hours work) which to me is a way bigger PITA.


elwoodblues
Elwood Blues
Premium
join:2006-08-30
Somewhere in
kudos:2
Reviews:
·VMedia
reply to Gone
said by Gone:

said by Rifleman:

The bitch owner wanted me to sit at home "on call" for free.

My last employer tried to pull that on me. I simply said I refused, and nothing - at least at that particular time - became of it. I didn't expect full salary for being on call, but I'll be damned if I should sit next to a phone and not be free to go anywhere I want on my "day off" without being compensated for it.

This goes on in iT all the time, ask Donoero, remember how he was struggling to get the vpn to work at the cottage?

I was looking at a job for a housewares retailer, they wanted you to be on call 24/7.

No thanks.
--
No, I didn't. Honest... I ran out of gas. I... I had a flat tire. I didn't have enough money for cab fare. My tux didn't come back from the cleaners. An old friend came in from out of town. Someone stole my car. There was an earthquake.......

quickdry21

join:2009-05-15
reply to Rifleman
Only forty hours a week are paid straight time, everything else is 1.5x and 2x.


Rifleman
Premium
join:2004-02-09
p1a
Not bad then.