HN2100
Collective Agreement
Administration
With
Paul Tilley
Unit 2
Regulating the
Collective Agreement
Unit 1
Unit 2: Regulating the Collective
Agreement
• After completing this unit, you should be able to:
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Discuss the History of Labour Relations In Canada
Describe what a union is and explain why employees join unions.
Discuss union membership in the world and in Canada.
Discuss the development of unions in Canada
Describe the process of forming a union in Canada
Explain how to determine an appropriate bargaining unit.
Describe the process of developing a Collective Agreement
Describe the duty to bargain in good faith.
Identify unfair labour practices by employers during negotiation.
Explain statutory freeze.
Explain the legal requirements established under Canadian collective bargaining law concerning
collective agreements.
12. Describe how collective agreements define the relationship between the trade union and the
employee.
13. Explain the roles of the federal and provincial governments in labour relations.
Overview of Unit 2
• This unit looks extensively at the legal requirements that govern the
bargaining process for collective bargaining in Canada. These
requirements, although not identical across the different jurisdictions,
form the framework of collective agreement administration. The legal
effect of a collective agreement helps to establish a special
relationship between the trade union and the employee. This
"special relationship circumvents "individual" rights and replaces
them with "collective" rights.
The Right to unionize
United Nations: Universal Declaration of
Human Rights
• Article 23 (4): Everyone has the right to form and to join trade unions
for the protection of his [or her] interests.
http://www.un.org/en/documents/udhr/
Canada’s Industrial Relations Regulations
1. Right to join a trade union
2. Canada Labour Relations Board (certification procedures)
3. Acquisition or termination of bargaining rights
4. Bargaining and Agreement rules
5. Conciliation officer appointment
6. Conditions for legal strike or lockout
7. Methods to promote peace
The Right to unionize in Canada
Federal and Provincial Legislation
Canada Labour Code
• Employee freedoms
• 8 (1) Every employee is free
to join the trade union of
their choice and to
participate in its lawful
activities.
• Employer freedoms
• (2) Every employer is free to
join the employers’
organization of their choice
and to participate in its lawful
activities.
http://laws-lois.justice.gc.ca/eng/acts/l-2/page-2.html#h-7
NL Labour Relations Act
• Rights of employees and
employers
• 5. (1) An employee has the
right to be a member of a
trade union and to participate
in its activities.
(2) An employer has the right
to be a member of an
employers' organization and
to participate in its activities.
http://assembly.nl.ca/Legislation/sr/statutes/l01.htm
The Canada Labour Code
• Contains Labour legislation for firms operating under parliamentary authority
(federal jurisdiction according to the Constitution Act)
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fair employment practices
wages and work hours
vacations and holidays
maternity benefits and sick leave
employee safety
job and income security
industrial relations regulations
Provincial Labour Regulations
• Labour legislation for firms operating under provincial authority
• Similar to Canada Labour Code
• Laws vary across provinces
• Laws are frequently revised
• Administering labour relations is complex and time-consuming
• NL Labour Relations Act
• NL Labour Standards Act
• NL Human Rights Act
Unions in Canada
• A Union is a formal association of workers that promotes the interests of its
members through collective action.
• Unions exist for three major reasons:
• Economic: To promote economic gains for their members. Unions strive to improve
the efficiency and equity of the ‘free market’ by providing a greater balance of
bargaining power between individual workers and the firms they work for. They
effectively redistribute the wealth through collective action that addresses the
power imbalance between individuals and larger firms.
• Political: To make political gains by promoting industrial democracy. Like economic
motives, political motives attempt to lever the power of workers by working together
as a single stronger voice for change. Unions lobby government and industry to seek
benefits for their workers.
• Human Rights: Unions work to establish standards for human rights in the
workplace.
Unions in Canada
• Modern Unions:
• Tend to focus on “Bread-and-butter” economic issues—wages, benefits, job
security, and working conditions.
• Are organized by kind of job and employer.
• Seek multi-year collective agreements on economic issues as “contracts.”
• Unions today emphasize
• job security
• gaining or maintaining benefits
• Unions must co-operate with employers to ensure survival of unions and
companies
• Perhaps unionism will increase to help young people avoid being stuck in lowwage jobs
Rise of Institutionalized
Collective Bargaining in the Private Sector
1944 Privy Council Order PC 1003:
• established a process to allow workers to certify a union,
• once a union was certified the employer was obligated to recognize
the union,
• it also established grievance-arbitration procedures which involves a
mechanism for the resolution of grievances without resort to strike
action;
• banned strikes during the life of a collective agreement, banning
sympathy or solidarity strikes
Rise of Institutionalized
Collective Bargaining in the Public Sector
• Late 60s also saw the beginning of the unionization of the public sector.
• Provincial: Quebec grants collective bargaining rights to public sector
workers, 1965. Remaining provinces do likewise from 1968-1978.
• Federal: Public Service Staff Relations Act, 1967
• Restrictions on issues that can be negotiated - “Excluded are all matters
respecting the organization of the public service, the assignment of
duties, the classification of positions, and job evaluation” (Johnson,
2011: 369).
• “estimated that public sector union membership increased from
approximately 183,000 members in 1961 to 1.5 million members in
1981” (Rose, 2007: 185).
Why Workers Join a Union
• If employees believe they do not get what they need from their
employer, they often turn to unions in hopes of achieving some sort
of equitable treatment.
• Workers tend to unionize for two key reasons:
• They are dissatisfied with how they are treated by their employers.
• They believe that unions can improve their work situations.
The Development of Canadian
Labour Unions
• The Canadian labour movement really has made a lot of gains towards improving the cause of workers in the last century and a
half. Minimum wages, overtime pay, workplace safety standards, maternity and parental leave, vacation pay, and protection from
discrimination and harassment all largely resulted from initiatives brought about through the union movement.
• 1873: national labour organization formed - “Canadian Labour Union”
• 1886: Canadian Trades and Labour Congress (TLC)
• 1908: Canadian Federation of Labour (CFL)
• 1940: Canadian Congress of Labour (CCL)
• 1944 Privy Council Order PC 1003:
• established a process to allow workers to certify a union,
• once a union was certified the employer was obligated to recognize the union,
• it also established grievance-arbitration procedures which involves a mechanism for the resolution of grievances without resort to
strike action;
• banned strikes during the life of a collective agreement, banning sympathy or solidarity strikes
• 1956: Canadian Labour Congress (CLC)
• 1967: Public Sector Staff Relations Act
• 1982: Charter of Rights and Freedoms
• 1985: United Auto Workers of Canada (UAWC)
Union Membership in Newfoundland
and and Labrador
Union Membership in Canada and
the US
Union Membership in the Developed World
(2011)
http://snohomishobserver.com/2011/05/
Trends in Union Membership on
Canada
• Unions are experiencing difficulties in attracting new members
• Union membership as a percentage of the total workforce is declining
(less than one-third)
• Diversity in the workforce consists of non-traditional members of a
union
• More women, ethnic minorities
• Employers are engaging in more anti-union activities, including more
employee-friendly workplaces
The Process of
Forming a Union
in Canada
Jurisdiction Matters
The specific legal process to have your union legally
recognized, or "certified", depends on where your
workplace is located. Labour law for most workplaces is
covered by provincial legislation, so the specific legal steps
to form a union will depend mainly on your province.
Federal Jurisdiction
While most workplaces will fall under provincial labour law, some workplaces are
covered by federal labour law. These include workplaces in the Yukon, Northwest
Territories, Nunavut and in the following industries:
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broadcasting
telecommunications
banking
air transportation
shipping and navigation
interprovincial or international transportation of goods or passengers
uranium mining and processing
grain handling
federal crown corporations
Stage 1 – Organizing
Usually employee dissatisfaction creates an environment to
begin a secret drive to organize
Option 1 – A national union approaches the workers
Option 2 – The workers approach the union
IN SECRET – Initially, employees express their support for the
union by signing union membership (Authorization) cards. A
movement takes hold to get a majority of workers to sign a
union card and pay a nominal fee.
Stage 2 – Cards to Labour Board
When the campaign has reached the proper level of
support, these cards are then submitted to the
appropriate provincial or federal labour relations board
(Labour Board), along with what is often called the
union's "application for certification."
The Labour Board will keep the membership cards
confidential and will not tell the employer who has
signed or not signed a union membership card.
Labour Board Defines Bargaining Unit
• Supervisors and Bargaining Units
• Supervisors are excluded from bargaining units
• Defined as any individual with the authority to hire, transfer, discharge,
discipline, and who uses independent judgment with employees
• The Appropriate Bargaining Unit is determined by:
• “Community of Interest”
• Wages, hours, and working conditions
• Traditional industry groupings for bargaining purposes
• Physical location and amount of interaction and working relationships
among employee groups
• Supervision by similar levels of management
Stage 3 – Labour Board
Approval/Election
The appropriate Labour Board can either certify (legally
recognize) the union based on a check and count of the
membership cards or;
In Newfoundland and Labrador, if more than 65% of
employees have signed cards, the Labour Relations Board will
certify the union without holding a vote. When at least 40%
but less than 65% of employees sign union cards, the Labour
Relations Board will hold a certification vote (Representation
Election) , generally within 5 working days.
See: Newfoundland and Labrador Labour Relations Board
Information Bulletin on Application for Certification
See: Canada Industrial Relations Board
Information Circular - Applications for Certifications
Stage 4 – Labour Board Certification
For workplaces in industries covered by Federal labour law
and for workplaces in the Northwest Territories, Yukon and
Nunavut, if more than 50% of employees have signed cards,
the union can be certified. If 35% - 50% of employees have
signed union cards, the Labour Board can hold a vote.
Once your union has been officially certified by the Labour
Board, you can begin to negotiate your first contract (also
known as your collective agreement) as members of the
union.
PROVINCIAL JURISDICTION See:
Newfoundland and Labrador Labour Relations Board
Information Bulletin on Application for Certification
FEDERAL JUSRISTICTION See: Canada Industrial Relations
Board
Information Circular - Applications for Certifications
Stage 5 – In-House Election
The newly certified union represents the workers in
a “Union Local”
The Local holds an Election amongst its members
The elected executive represents the Local’s
interests and conducts Bargaining on the member’s
behalf.
Stage 6 – Bargaining / Labour Action /
Agreement
After a union has been certified, employers have to meet with them and engage in what is called
“good faith bargaining”
This bargaining ideally culminates in a contract – an agreement between the union and the employers.
The contract is then voted on by union members.
If no contract is bargained, then the union can go on strike to put pressure on the employer.
During the strike an employer can hire replacements – which unions called “scabs” to work instead of
the striking workers.
Employers are not allowed to fire workers while on strike, but they also are not prevented from
replacing them with permanent replacements. One of the conditions of settlement of successful
strikes is nearly always getting rid of the replacement workers.
Legal Do’s and Don’ts for Managers During
Unionization
Employer Do’s
Employer Don’ts
• Discharge, suspend, transfer, layoff or
otherwise discipline an employee for proper
cause
• Engage in threats, coercion or intimidation
• Make a change in the operation that is
reasonably necessary for the proper conduct
of business
• Hire spies or infiltrators to acquire
information or influence union activities
• Express management views on any matter
providing it does not use intimidation or
coercion
• Interrogate employee about their voting
intentions
• Promise or alter the terms of employment in
response to a union drive
• Shut down any establishment to avoid or
eliminate a union
• And many other activities…
Developing a Collective Agreement
• Collective Bargaining is a multistage process through
which union leaders and management personnel
negotiate common terms and conditions of
employment
• Through the collective bargaining process, union and
management try to reach an agreement on such issues
as pay, pensions, workload and holidays.
• Once an agreement is reached, a contract called a
collective agreement, is signed by both sides that state
the terms of the agreement and how long it is in effect.
Collective Bargaining
The bargaining cycle begins when representatives from the union and
management get together to negotiate a contract
A “bargaining zone” is reached, which is a reasonable range of options
acceptable to the parties
a ratification vote
is taken to accept or reject
a tentative agreement
If accepted,
the contract is signed
and becomes the
Collective Agreement
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If rejected,
management and union
resort to different
tactics to influence
the process
Developing a Collective Agreement
Contract Issues
• Mandatory items
• Compensation
• cost-of-living adjustment (COLA)
• wage reopener clause
• Benefits
• Working hours
• Permissive items
• Job security
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VIDEO: FINAL OFFER - Contract
Negotiations
This Video follows the 1984 contract negotiations between the
United Auto Workers and General Motors Corporation.
This is an invaluable document for anyone interested in the
complexities collective bargaining. It's an extraordinary film
about revolutionary events.
https://www.nfb.ca/film/final_offer
Bargaining in Good Faith
• The parties have a legal obligation to meet and to "bargain in good faith“
• What constitutes Bargaining in Bad Faith?
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refusing to meet
refusing to recognize the union
not giving the negotiating team the power to bargain
surface bargaining — in other words, going through the motions to make it appear as
though they are bargaining in good faith but not making any real attempt to reach an
agreement
deception
concealing important information
deliberate provocation
refusing to justify a position
refusing to make every reasonable effort to enter into a collective agreement
Bargaining in Bad Faith: Union
• Bargaining collectively or signing a collective agreement where another union is
known to be the bargaining agent.
• Interfering with or participating in the formation of an employers’ organization.
• Attempting to organize on the employer’s premises during working hours without
the consent of the employer.
• Using coercion, intimidation, threats, promises, or undue influence to encourage
trade union membership.
Statutory Freeze during Negotiations
• During the negotiations period, employers are not permitted to
change an employees' wages or take away privileges that employees
always enjoyed. There is a "freeze" on the employers' right to
unilaterally change items that would typically be bargained.
• In order to determine if there has been a violation of the statutory
freeze provision, the Labour Relations Board will consider:
a. if the change involve a matter that management would be obliged to
bargain in good faith
b. if the change involve a matter that would typically be the subject of
bargaining
c. whether a unilateral change would disrupt or distort the bargaining process
Recent Labour Conflicts
• Jim Stanford. “Raitt’s Three Principles for labour relations only run
one way,” Globe & Mail. November 2, 2011.
http://www.theglobeandmail.com/news/opinions/opinion/raitts-three-principles-for-labour-relations-only-run-one-way/article2221394/
• Contracted out transit service in York Region is currently experiencing
a strike.
http://www.cbc.ca/news/canada/toronto/story/2011/10/23/toronto-bus-strikes-loom.html