The Collective Agreement in Operation
The Collective Agreement in Operation
A collective agreement is a written agreement between a trade union and an employer. It is a contract setting out the terms and conditions of employment for each employee covered by the agreement. It is binding on all employees covered, whether or not they are members of the union.
The parties can put into a collective agreement any provisions they agree on relating to terms and conditions of employment. For example, provisions may deal with wages, vacations, hours of work, seniority and promotions, lay-offs and recall or benefit plans. An important provision contained in most collective agreements relates to the employee's relationship to the union, usually called a union security clause.
All collective agreements need a grievance and arbitration provision that allows disputes about the meaning and operation of the agreement to be settled without a work stoppage. A union is not required to arbitrate all grievances; many are settled through discussion. However, a union has a duty to represent employees fairly in matters arising out of the collective agreement.
Union Security
The trade union and the employer often agree to include one of several approaches to union membership in the collective agreement. These provisions, if agreed upon, determine the extent of the employees' obligation to belong to or pay dues to the trade union.
There are five common types of union security arrangements.
All current and future employees must join the trade union within a specified time after they are hired, and must remain as members in good standing as a condition of continued employment. Dues must be paid to the union.
A person must be a member of the union before being hired by the employer, and must remain a member in good standing as a condition of employment. Dues must be paid to the union.
The agency shop - the "Rand formula"
This clause does not require employees to join the trade union but non-members must pay the union an amount equal to the dues paid by members. The agency shop arrangement is commonly called the Rand formula.
Maintenance of membership
New employees need not join the union, but those who are already members must maintain their membership and pay dues as a condition of continued employment.
The Labour Relations Code provides for the compulsory deduction of union dues by the employer upon receipt of written authorization from the employee. This written authorization must be complied with, whether or not the union is certified and whether or not a collective agreement is in force (Section 27).
If an employee, by reason of religious belief, objects to joining a trade union or to paying dues to the union, the Board may release the employee from that obligation. In such cases, instead of paying dues or other fees to the union, the employee is required to pay the same amount of money to a registered charitable organization (Section 29(2)).
Grievance Arbitration
Collective agreements must have a provision setting out how disputes over the meaning or application of the agreement are resolved. The method is usually a grievance procedure followed by a form of arbitration called "grievance" or "rights" arbitration. This process for resolving disputes is used when issues arise during the course of a collective agreement over the meaning of, or an alleged violation of, the collective agreement.
Arbitrators deal with several types of cases. Sometimes they deal with cases involving just one or a few individuals, such as discharge and discipline cases. At other times they will deal with cases involving many employees, such as a dispute over overtime or benefit payments. Sometimes the arbitrator will simply interpret the collective agreement because the union and the employer disagree on its meaning or whether it applies in a given situation.
Most collective agreements include a grievance procedure consisting of three or four stages, with more senior persons from both union and management attempting to resolve the problem at each stage. If a solution cannot be found, the problem may then go to arbitration.
If an agreement does not contain a grievance and arbitration procedure, the parties are required to follow the model collective agreement arbitration procedure set out in Section 136 of the Labour Relations Code.
Can an employee sue an employer instead of filing a grievance?
Disputes in a collectively bargained workplace usually have to be processed through the grievance and arbitration process rather than through the courts. An employee who feels wrongfully dismissed must proceed with a grievance rather than a court action for wrongful dismissal. Attempting to take the matter to court is likely to fail and may mean the employee loses an opportunity to file a grievance. There is often a very short period in which to file a grievance.How long does grievance arbitration take?
Unions and employers, through collective bargaining, are free to choose the system of arbitration that best suits their needs. Some systems take longer than others. If speed is important, the parties should try to select arbitrators with time available to render a decision within a reasonable period. If the process is unreasonably delayed, the Labour Relations Board has the power to speed up the process (Section 140).Do the parties have to accept a grievance arbitration decision?
Yes. The arbitrator or arbitration board's decision is final and binding on all parties involved. If it is not complied with, the decision (called an award) can be filed in the Court of Queen's Bench and enforced as a court order.An arbitration award cannot be appealed directly, but the court can conduct a limited review and set aside any award made beyond the arbitrator's powers, or that involves unreasonable errors of law. Any such application for review must be filed in court within 30 days of the date the award was issued (Section 145).
The Union's Duty of Fair Representation
The Code, recognizing that the union has considerable authority and control over the processing of grievances, requires that unions represent employees fairly with respect to their rights under the collective agreement (Section 153).
This "duty of fair representation" requires the union to exercise its discretion in good faith, after studying the grievance and assessing its merits honestly and objectively. The union should take into account the significance of the grievance and its consequences for the employee on the one hand, and the legitimate interests of the union on the other. Making a mistake in the process, however, does not automatically make the union liable for the employee's loss. Employees must take reasonable steps to protect their interests. Employees should carefully check the collective agreement to see exactly what rights it gives them.
While the union usually has the discretion to settle or refuse to pursue a grievance, it commits a prohibited practice if it abandons a grievance in a manner that amounts to unfair representation. The union is protected from financial liability for fair representation claims when it has acted in good faith in respect of the employee. The union is also protected when the loss was the result of the employee's own conduct (Section 153(2)).
Occasionally an employee's chance to file a grievance is lost by a union's failure to represent the employee. The Code gives the Board a limited power to extend collective agreement time limits. This can only be done in cases involving loss of a job or of a substantial amount of work. There must be reasonable grounds for making the extension and steps must be taken so that the employer will not be substantially prejudiced by the extension. This may involve an order that the union compensate the employer for losses suffered as a result of the union's failure.
Can an employee appeal the union's decision about a grievance?
An employee dissatisfied with the way a union has dealt with a grievance has three avenues to explore. First, the union's constitution or bylaws may provide an internal appeal procedure. Second, employees should check the collective agreement to see if, and to what extent, they can pursue grievances on their own behalf. Third, employees have the option of filing a complaint with the Labour Relations Board alleging unfair representation by the trade union (Section 153).The complaint procedure involves a review of the conduct of the union. It is not an appeal of the union's decision or a hearing on the merits of the grievance. The Board will not interfere with a union's decision simply because the affected employee disagrees.
