Lecture 16: Negotiating a Collective Agreement
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
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
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
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
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
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
statute puts employer under duty to recongize the union
o to balance out the employer's economic power and reduce inequality of
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