INDUSTRIAL RELATIONS IN CANADA INDUSTRIAL RELATIONS IN CANADA Second Edition Fiona A. E. McQuarrie Prepared by Kenda Murphy, Saint Mary’s University Kenda Murphy, Saint Mary’s University

Chapter 7 Defining and Commencing Collective Bargaining

At the end of this chapter, you should be able to:At the end of this chapter, you should be able to:  Describe how certification changes the relationship between employees and employers  Identify exemptions to the effects of certification  Name the participants on the union and management bargaining teams  Understand how bargaining structure is determined  Describe the process by which bargaining teams arrive at their list of desired outcomes  Identify practices that are considered bargaining in good faith Chapter 7 Objectives

The Effects of Certification Now that a union is in place, the employer cannot negotiate one-on-one with employeesNow that a union is in place, the employer cannot negotiate one-on-one with employees Both the employer and the union are compelled to commence collective bargainingBoth the employer and the union are compelled to commence collective bargaining So as to ensure there is a level financial playing field between the resources of the union and those of the employer, there are union security clauses found in labour legislationSo as to ensure there is a level financial playing field between the resources of the union and those of the employer, there are union security clauses found in labour legislation

The Effects of Certification Examples of union security clauses:Examples of union security clauses:  Dues check-off – the employer deducts union dues from the employee’s pay cheque (subject to generally permitted exceptions like the religious exemption)  The Rand formula – based on the principle that not all employees may wish to join the union, but all benefit from the union contract  Closed shop or union shop – new employees must become a member of the union and pay dues  Hiring Hall – skilled tradespersons and construction sectors hire through the union  Union expulsion – if an employee is expelled from the union then the employer may terminate employment

The Framework for Collective Bargaining The Structure of Collective BargainingThe Structure of Collective Bargaining  “Structure” refers to the number of unions, employers, workplaces, or industries represented in a particular collective bargaining situation  The simplest and most common bargaining structure is “single unit-single employer,” but more complex structures are possible  Groups of employers or unions may bargain as a single entity – this helps avoid pattern bargaining or whipsawing where a union uses an agreement with one employer to pressure others

The Framework for Collective Bargaining There are generally two teams of negotiators, one team representing the union and the other representing the employerThere are generally two teams of negotiators, one team representing the union and the other representing the employer What can be bargained for?What can be bargained for?  Most common issues are wages, benefits, hours of work, procedures for hiring and promotion, discipline and discharge, and working conditions  While no issue is prohibited from being negotiated, most agreements contain a management rights clause which gives the employer certain rights in organizing and directing its workforce

The Framework for Collective Bargaining What Can the Participants Bargain for? Some legislative guidelines:Some legislative guidelines:  Collective agreements must meet minimum terms – in most jurisdictions, one year  Agreements cannot contain provisions inferior to the minimum conditions specified in the relevant employment standards act  Agreements cannot discriminate  Agreements are generally required to contain a grievance procedure

Preparing to Commence Bargaining Timelines for BargainingTimelines for Bargaining  Whether it is a first contract or the expiration of an existing agreement, the bargaining process is initiated by one party issuing a notice to bargain to the other party  There are timelines of when bargaining is expected to begin after the notice has been issued  If bargaining does not commence in a timely fashion, the union may be found to have abandoned its bargaining rights and be decertified

Preparing to Commence Bargaining Setting Bargaining PrioritiesSetting Bargaining Priorities  Before starting to bargain, a team will address two questions: –What outcomes does the team want to achieve? –Which of these outcomes are the most or least important?

Preparing to Commence Bargaining Setting Bargaining Priorities (cont’d) Means of identifying and prioritizing goals:Means of identifying and prioritizing goals:  The union may poll its membership  The union may review past negotiations  Union and management may examine related collective agreements  Union and management will examine the record of grievances  Union and management will both look at external environmental conditions – inflation, labour market demographics, economic indicators

Preparing to Commence Bargaining A union negotiating team’s perception of what goals are realistic can be influenced by the demographics of the team which often means that issues of the team members are addressed rather than broad issues of the workplaceA union negotiating team’s perception of what goals are realistic can be influenced by the demographics of the team which often means that issues of the team members are addressed rather than broad issues of the workplace A team must keep in mind that the agreement must be ratified by the whole membershipA team must keep in mind that the agreement must be ratified by the whole membership Management team’s goals usually reflect the organization’s goals in view of previous bargaining rounds and concluded agreements in other organizations as well as laws and decisionsManagement team’s goals usually reflect the organization’s goals in view of previous bargaining rounds and concluded agreements in other organizations as well as laws and decisions

Preparing to Commence Bargaining Preparing for the Start of BargainingPreparing for the Start of Bargaining  Both negotiating teams develop a laundry list of proposals  Both teams exchange proposals, but without indicating priority of the issues  The lists may also include items that are low priority or are considered unachievable which plays a role in the strategy of the negotiation

Preparing to Commence Bargaining Bargaining in Good FaithBargaining in Good Faith  Parties are legally required to bargain in good faith  Bad faith bargaining complaints can be made at any point in the collective bargaining process or before bargaining begins  There are 2 components to good faith bargaining: –Parties enter into honest bargaining –Parties are expected to bargain with the intention of concluding an agreement

Preparing to Commence Bargaining Bargaining in Good Faith If one party believes the other party is not bargaining in good faith, it can file a complaint of an unfair labour practice with the labour relations boardIf one party believes the other party is not bargaining in good faith, it can file a complaint of an unfair labour practice with the labour relations board The board will use both objective and subjective criteria to evaluate the complaintThe board will use both objective and subjective criteria to evaluate the complaint Bad Faith complaints can be very difficult for Labour Boards to resolveBad Faith complaints can be very difficult for Labour Boards to resolve

Preparing to Commence Bargaining Bargaining in Good Faith In most jurisdictions, the following have been identified as bargaining in bad faith:In most jurisdictions, the following have been identified as bargaining in bad faith:  Outright refusal to bargain  Surface bargaining, i.e., participating in negotiations but having no intention of concluding a collective agreement  Boulwarism – take it or leave it proposal; presenting an initial offer as a final offer without justification or rationale and refusing to negotiate further

Preparing to Commence Bargaining Bargaining in Good Faith Additional examples of bargaining in bad faith:Additional examples of bargaining in bad faith:  Firing or disciplining union members or negotiators for reasons unrelated to their work, or for no reason, during the negotiation process  The employer bargaining directly with employees  Refusing to provide the rationale for a bargaining position  Attempting to reopen negotiation of terms that have already been settled

Preparing to Commence Bargaining Bargaining in Good Faith The expectation that the parties will bargain in good faith does not require that a collective agreement be reachedThe expectation that the parties will bargain in good faith does not require that a collective agreement be reached Parties are not expected to “give in” just to reach an agreementParties are not expected to “give in” just to reach an agreement Most labour codes state that once bargaining begins, workplace terms and conditions are under a freeze even when negotiating as a result of an expired agreementMost labour codes state that once bargaining begins, workplace terms and conditions are under a freeze even when negotiating as a result of an expired agreement

Preparing to Commence Bargaining Bargaining in Good Faith Remedies are also often difficult to prescribe apart from the Board clearly stating what is and is not “bargaining in good faith”Remedies are also often difficult to prescribe apart from the Board clearly stating what is and is not “bargaining in good faith” If necessary, or possible, the board will repair whatever substantive damage was caused by the unfair labour practiceIf necessary, or possible, the board will repair whatever substantive damage was caused by the unfair labour practice

Preparing to Commence Bargaining Bargaining in Good Faith A board must also come up with a remedy when a bad faith bargaining complaint is made while parties are negotiating their first collective agreementA board must also come up with a remedy when a bad faith bargaining complaint is made while parties are negotiating their first collective agreement In these cases a board can impose a collective agreement on the parties which is not ideal as it gives the responsibility of imposing work obligations to a third party who is not involved in the daily relationship between the partiesIn these cases a board can impose a collective agreement on the parties which is not ideal as it gives the responsibility of imposing work obligations to a third party who is not involved in the daily relationship between the parties

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