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Lecture 16

lecture 16.docx

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Justice Studies
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Stefan Idziak

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Lecture 16: Negotiating a Collective Agreement Introduction  core of collective bargaining legislation is bargaining  legisltion requires that individuals not bargain except through union, and that employer not bargain with another union.  however, this is somewhat hard because the employer often does not want to, and has little incentive to, bargain with the union. o the parties are bound together in an uncontract-like way, and have powers with no equivalent in the normal private sector, like lockouts and stikes. The Statutory Timeline  statute lays out detailed timeline  starts with certification of a union o certification entitles the union to serve employer with notice to bargain. o if this is not the first bargain, either party can seve notice  service of notice triggers "duty to bargain" o requires "good fiath" and a duty to make "every reasonable effort" to reach a collective bargain  before parties can resort to strike or lockout, they must try to reach agreement o statute also often requires them to go through a concilation or mediation process  typically there will be no imposition of a collective agreement, with the exception of first contract arbitration wihch allows terms to be imposed into the first agreement if parties cannot agre.  Even once a strike or lockout beings, the duty to bargain continues, but does change character o parties no longer required to negotiate, since they are relying on economic coercion to succesed.  once a bargain is reached, strikes and lockouts are no longer allowed, and the duty to bargain is suspended until it is time to negotiate a new agreement.  during life of bargain, both sides can change agreement with the consent of the other side o third-party greivance arbitration required in order to interpret the bargain.  the only exception to the ban against strikes/lockouts is where the employer introduces some tehcnological innovation that is likely to affect the terms and conditions or security of employment, and this is only in a few statutes (including Canada Labour Code) The Bargaining Freeze  cannot change the terms and conditions of employment once notice to bargain has been given  freeze begins with notice, ends with the signing of anew collective agreement or the termination of the union's right to bargain collectively.  some jursidctions end the freeze once bargaining leads to a strike or lockout. o in ONtario and Newfoundland, if the union doesn't call a strike as soon as lawfully permitted, the employer may unilaterally change terms and conditions without actually istituuting a lockout. o in Alberta, employer must institute lockout if unoin unwilling, this brings the freeze to an end and allows changes in terms and conditions. The Duty to Bargain in Good Faith  because employer would typically prefer not to bargain, we need some way of forcing them to do so o unlike an ordinary contract, if they can't agree, one side can't just walk away  thus rules are needed.  s. 11 create the duty to bargain in faith o applies to both side are requires both parties to negotiate in good faith and to attempt to conclude a collectiv bargain  critical in the effectiveness of unionization and in avoiding too many striies.  however, this duty is purely procedural, not content Purposes of the Duty to Bargain  employer has tudty to bargain collectively by statute, for four reasons o to reduce number of strikes for recongition  historically many strikes the result of employer refusing to recognize union.  statute puts employer under duty to recongize the union o to balance out the employer's economic power and reduce inequality of bargainingpower  individual employees helpless as compared to employer o implement the basic philosophy of requiring employers to bargain collectively  employer can't bargain with the individuals alon o to allow employers and employees to rationally ecahnge views and reach agreements.
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