Negotiating highly specific scheduling rules may unintentionally create obligation to replace absent workers
A recent Quebec arbitration decision involving Kerry (Canada) Inc. puts a spotlight on how detailed scheduling language in collective agreements can restrict management rights, while HR technology leaders are seeing the very real impact of unstable schedules on employee confidence and retention.
The case, Syndicat des employés-es de l'agri-alimentaire de Ste-Claire inc. (CSD) v Kerry (Canada) Inc., turned on whether a clause in a collective agreement forced the employer to backfill every temporary vacancy once the weekly schedule was finalized.
For employers across Canada, the decision is a warning that negotiating highly specific scheduling rules may unintentionally create an obligation to replace absent workers and reduce flexibility when operational needs change.
Why scheduling language matters in collective agreements
Carl Trudeau, partner at Fasken in Montreal, says the starting point for employers is understanding how scheduling interacts with management rights in unionized workplaces.
He explains that, in the absence of explicit provisions, employers retain considerable discretion over how work is scheduled, subject to a requirement to act reasonably.
In the Kerry Canada grievance, the union argued that the temporary vacancy clause effectively required the employer to fill any role that became vacant for a defined period, creating what Trudeau describes as a minimum employment level or employment floor.
This runs against the general principle in Quebec law that employers do not have a statutory obligation to replace workers who are temporarily absent unless that duty is clearly negotiated: “The more language you add in the collective agreement regarding scheduling … then there can be debates on what it means,” he says.
While the Kerry award arises from a unionized environment, Trudeau says the underlying contrast between union and non-union scheduling is instructive for all employers.
In a non-union setting, he explains, there is no collectively bargained scheduling protocol, which leaves management with broader room to decide whether and how to replace vacant positions, as long as statutory requirements and the duty to act reasonably are met.
Even so, he flags that significant schedule changes in any setting should be approached carefully; in his experience, shifting schedules abruptly can cause employee dissatisfaction and engagement issues, which may in turn increase complaints or drive turnover.
“That should be done very cautiously,” he warns, “because this is what usually can cause issues in terms of engagement, if it's not done properly.”
Unstable schedules and multiple jobs
On the ground, HR software providers are seeing how unstable scheduling plays out for both employers and workers.
Mark Bluvshtein, CEO of Canadian HR and payroll software firm Collage HR, says employees with fluctuating hours are often the least able to benefit from scheduling tools, and often are feeling the effects of inconsistency in their daily lives due to economic factors.
Employers exacerbate these effects with inconsistent scheduling practices, he adds – which can lead to turnover and increased absenteeism.
“The employers are looking to reduce costs, so they might be trying to tweak things below their historical averages in the number of hours. So understaffing is a real issue for those employees as well,” he says.
“What we're seeing on the employer side, we are seeing more cancelations of shifts, more employees are calling in sick, and then the employer suddenly has to figure out how to navigate that situation.”
Shift cancellations and no-shows make it more difficult to schedule consistently, perpetuating the cycle of high turnover, Bluvshtein explains, adding that anecdotal feedback from clients has suggested that more staff are juggling multiple roles and choosing whichever shift is most attractive on a given day, further undermining predictability.
“They are seeing more of their staff actually holding multiple jobs as they look to increase their wages,” he says.
“They believe that that's part of the reason for more canceled shifts, where they will always be choosing the shift or the job that is more attractive for that day.”
Bluvshtein observes that in response to increasing shift cancellations, many employers are shifting their focus toward a smaller group of highly reliable employees. Those with very low no-show rates and consistent attendance are being offered more hours and, where possible, schedules that better reflect their preferences.
“Employers, from what we're seeing, are actually doubling down on the staff that is more committed to the organization,” Bluvshtein says.
“So if there is a 0% or close to 0% cancellation rate, they try to invest more into that staff and try to give them potentially more hours, potentially work around their hours as well … because every employer is trying to identify the staff that will be with them long term.”
Turnover and search for more predictable roles
From the employee perspective, unreliable schedules can drive job changes or even career shifts, Bluvshtein says – workers who are not getting consistent hours may feel they have no choice but to take on multiple roles and may be more likely to leave positions that do not offer either stability or flexibility.
For employers, that means scheduling practices can be a deciding factor in whether they retain or lose staff, even if pay rates remain competitive. Bluvshtein says employers should focus on predictability and advance notice wherever possible. Even where operational needs fluctuate, he says, offering employees as much consistency as the business can reasonably sustain appears to support both confidence and attendance.
“Really investing in trying to give clarity for staff, knowing well in advance what those schedules would look like and as much consistency as possible,” Bluvshtein says.
“Staff really appreciate that as they navigate life beyond work, week over week.”
Ultimately, he says, clarity and minimal surprises are central to employees’ experience of scheduling. When workers can anticipate their hours and see that their preferences are considered where possible, they are more likely to value and protect those shifts, which can in turn support employer needs for stable coverage.
For employers negotiating or renewing collective agreements, Trudeau recommends preserving flexibility where possible, aiming for a balance between management rights and employee morale: “The more you have specific rules with respect to scheduling employees, the more you have risk of losing freedom and the management rights.
