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What is collective bargaining?

Continuing with our labour law series, in this week’s blog post we will discuss collective bargaining, the process by which a union and an employer negotiate the terms and conditions of employment for employees for whom the union holds bargaining rights.

What is a collective agreement?

At a minimum, a collective agreement covers hours of work, wage rates, seniority, vacation entitlements, and benefits, as well as procedures for job posting, discipline, layoffs, termination, etc. It will also set out a grievance and arbitration procedure to deal with differences of opinion between the employer and the union.

Duty to bargain in good faith

Both the employer and the union have a duty to bargain in good faith and make every reasonable effort to make a collective agreement following certification or voluntary recognition, and at the expiry of each collective agreement.

But what does good faith mean? Generally, good faith means that both parties meet with the intention of concluding, revising or renewing a collective agreement, and making reasonable efforts to do so. It also involves engaging in a full, rational, informed discussion about the issues. Parties are to avoid deception, surface bargaining and taking unreasonable bargaining positions. Neither party can, of course, propose illegal clauses.

The duty of good faith bargaining seeks to minimize industrial conflict by fostering rational, informed discussions. As such, last minute demands and unreasonable bargaining positions are not in keeping with the duty of good faith. 

This duty also requires that the employer responds honestly to union inquiries during negotiations about any business plan or decisions that may have a significant impact on the bargaining unit. An employer may also have to proactively disclose any such finalized or highly probable decisions. For example, if before or during negotiations, an employer becomes aware that it is likely that the business will be shut down, the duty to disclose requires proactive disclosure of this decision to the union. 

Collective agreement to be filed with ministry of labour

Once a collective agreement is reached, a copy must be filed with the Ministry of Labour.

What if the parties simply cannot agree?

Even where parties bargain in good faith, they are sometimes unable to reach an agreement. In that event, either party can request that the Minister of Labour appoint a conciliation officer or mediator to assist with finalizing a collective agreement. If that is not successful, then in most circumstances, the union has the option of going on strike; the employer has the option of locking-out employees. The parties can return to bargaining at any time, despite the commencement of a strike or lockout and most strikes are resolved by the parties reaching agreement at some point.

Some workplaces do not have the option of a strike/lockout (e.g. long-term care facilities, police, firefighters, etc.). In this “no right to strike” sector, parties who cannot reach agreement must proceed to interest arbitration, where an arms-length third party board of arbitration hears argument from each side about the issues in dispute and issues a decision setting the terms and conditions of the collective agreement.

Should I get legal advice when bargaining a collective agreement?

There is no legal requirement that an employer have legal counsel involved in the negotiation of a collective agreement and many employers negotiate their collective agreements without legal advice, particularly if the issues are straightforward (e.g. if the only issue is the proposed increase in wage rates). That said, there are a few situations where an employer might want to consider involving legal counsel.

The most obvious one is during the first, and perhaps second, round of collective bargaining. The union bargaining agent will almost certainly have more experience negotiating collective agreements than a newly-unionized employer and will know the most advantageous language to benefit employees. The union will also have access to legal counsel (often in-house) to assist. By the time the second collective agreement is being negotiated, the employer will have a better understanding of the collective agreement articles that are not working well and may need assistance to negotiate significant changes to better reflect the realities of the specific workplace.

Another time when the advice of a skilled labour lawyer can assist is after the collective agreement has been renewed several times. It’s easy for the parties to amend language in one article without considering whether it might conflict with, or at least be inconsistent with, an article in a different part of the collective agreement. It’s also common for arbitral case law to affect the interpretation of articles such that they no longer reflect the parties’ original intention. A thorough review and updating of the collective agreement from time to time is an investment that can really pay off when a grievance is filed.

Whether or not you enlist the assistance of legal counsel, make sure that everyone involved takes detailed notes about what was discussed at the bargaining table and the meaning of any agreed upon terms. These notes can be useful later on if there is disagreement as to what was agreed to during negotiations. 

If you have questions about any union related issues in your workplace, please contact any member of Siskinds’ Labour Law team.

*This post does NOT discuss collective bargaining in the construction sector, where completely different rules apply.

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