Unions and Employment Standards

[vickyp]

#81210

Forum: Community

We recently realized that in British Columbia there is a fact sheet produced by Employment Standards outlining when basic rights cannot be negotiated and must, at a minimum, be followed. It also outlines when some parts of ESA can be negotiated in the collective agreement and therefore employment standards does not apply and has no jurisdiction (overtime, annual vacation, seniority retention, statutory holidays, termination and layoff).

Although it is unlikely that a union would agree to provisions deemed lesser than Employment Standards, we are wondering how other provinces work. We received information from Alberta Employment Standards that no such provisions apply in Alberta as they do in BC. Employment Standards is always the minimum and is upheld even with a collective agreement in place.

Thank you,

[Haley O’Halloran]

#97998

Across all provinces (and federally), employment standards legislation establishes minimum employment conditions (wages, hours, overtime, vacation, statutory holidays, termination/severance, etc.) that employers generally cannot contract out of or waive. Employers and unions can agree to terms that exceed these minimums, but not terms that provide lesser protection than the statutory minimum.

This is a central principle of Canadian labour law: minimum standards are public policy floors, and agreements below those floors are unenforceable.

British Columbia (BC) — Exception to the General Rule

BC’s approach is a bit different compared to most other provinces:

How BC Works

In BC, if a collective agreement contains provisions that meet or improve on certain parts of the Employment Standards Act (ESA), then those parts of the ESA do not apply in the unionized workplace on those topics.

For example, if the collective agreement covers hours of work/overtime, statutory holidays (except National Day for Truth and Reconciliation), annual vacation, seniority retention, layoff/recall, and termination/layoff and those terms are as good or better than the ESA, then the ESA will not apply to those areas — the collective agreement governs instead.

Employment Standards Branch therefore has no jurisdiction to enforce those terms — disputes go to the grievance/arbitration process in the collective agreement.

BC’s statute essentially allows the collective agreement to replace portions of the ESA where it meets or exceeds the statutory standard — a model sometimes referred to as “ESA superseded by collective agreement.”

This is the fact sheet your organization likely referenced.

Alberta — ESA Always Applies as Baseline

Alberta’s Employment Standards Code sets out minimum rights that apply to all employees, including unionized ones. A collective agreement or employment contract cannot lawfully provide terms that are less than these minimum standards — any such provision is void as against public policy.

Even if a collective agreement is silent on a specific standard (like overtime, holidays, vacations, termination, etc.), the Code still applies. If a collective agreement doesn’t cover a subject (or is silent), the Code still governs that subject.

Alberta’s Employment Standards Code is specifically designed so that the Code floor always applies — you can’t “contract out” of ESA rights via a collective agreement.

Ontario — ESA Always a Floor

Ontario generally follows a similar model to Alberta:

Ontario’s Employment Standards Act (ESA) sets minimum employment conditions that must be met by employers and cannot be overridden by contract or collective agreement to provide lesser protection.

Any contractual term (individual or collective) that offers less than the ESA minimum is unenforceable, but parties remain free to negotiate terms that exceed the minimums.

This means an employee is always entitled to at least ESA protections regardless of agreement language.

Québec

Québec’s LSA (Labour Standards Act) imposes statutory minimums that cannot be contracted out of. Like Alberta and Ontario, any agreement that provides less than required minimums is generally void. (This principle is implicit in how Québec law applies employment standards.)

Other Provinces & Territories

While we haven’t pulled specific provisions for every province, the general pattern outside BC is:

-Minimum employment standards apply to all employees.
-Collective agreements cannot reduce these minimum rights — only improve them.

Where a collective agreement does not cover a topic, the employment standards legislation still applies. Any term in a collective agreement less favourable than the statute is void.

Why BC Is Different

BC’s ESA is somewhat unique in that it expressly states that where the collective agreement provides equal or better terms, the statutory provisions are replaced by or displace the corresponding statutory provisions rather than operating in addition to them.

Alberta, Ontario, Québec, and most other provinces do not have an equivalent “replace” mechanism in their standards legislation — they simply say the standards are minimum entitlements, period.

Takeaways for HR/Labour Relations Teams

Outside BC:

Collective agreements must meet or exceed statutory minimum standards. If you see a clause that purports to offer less than statutory minimums, it’s likely unenforceable. The ESA applies in addition to the collective agreement if the agreement is silent.

In BC:

Review collective agreements carefully to see which ESA sections have been displaced. Understand that disputes on displaced topics must go through the grievance/arbitration process rather than the ESA branch.

I hope this helps!
-HRInsider Staff

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