A striking Toronto city employee who was interviewed recently on the picket line complained that, should her young daughter get sick, she would have no healthcare benefits because of the strike.
Strikes create a unique situation in regard to benefits, and one that has a few interesting twists.
The general situation accepted by workers going on strike is well summarized in Labour Law in Canada by Carter, England, Etherington and Trudeau. “Prima facie, an employee who goes on strike thereby forfeits the right not only to his/her regular pay, but also to all other benefits which are associated with his/her employment. Thus, with the outbreak of a strike, the employer is free to terminate insurance coverage, pension contributions and benefits, paid vacations and holidays, etc.”
Unions or individual employees may be able to negotiate a continuation of benefits during a strike, provided they pay the premiums. This has happened in the Windsor civic strike. Provincial legislation may even require the employer to allow the union to pay premiums.
Labour Law in Canada continues: “In practice, a union and an employer will often make arrangements whereby contributions may be made on behalf of employees to avoid the forfeiture of such benefits. Often, too, after a strike, a collective agreement is signed which relates back to the date of expiry of the previous collective agreement, and retroactivity restores the status quo ante.”
However, retroactivity does not cover all situations. A Nova Scotia arbitration where employees claimed statutory holiday pay for holidays during the strike (there was no previous shift/subsequent shift worked requirement) were unsuccessful.
In one case this general rule does not apply. Arbitrators consider that employees who are on sick leave or on L.T.D. when the strike begins have a different status and are not on strike. Therefore, they may continue to receive benefits during a strike until they are no longer eligible, but may not start receiving them if they become disabled during a strike. In the same way, retirees’ pensions are not stopped during a strike. But, vacations that have been earned and scheduled are generally not available. Being on vacation does not create a new status.
An Alberta arbitration, Foothills School Division No. 38 and A.T.A., discusses the question of vested and accrued rights at length. In it, several teachers were receiving sick pay and one a maternity top-up when the strike began. The employer suspended the benefits for the duration of the strike. The arbitrator found both that he had jurisdiction to hear the grievance, despite the fact that the agreement was expired during the strike, and that the right to the payments had vested under the previous contract prior to the strike and had to be continued.
And, as always, specific language negotiated in the contract to cover one of these eventualities will apply where it exists.