Negotiating a Collective Agreement

Chapter : Negotiating a Collective Agreement
Collective bargaining law is concerned with the substantive requirements and procedural
standards of bargaining between the employer and the employees seen as a unit. Collective
bargaining is one of the principal reasons why employees join a union and why unions
secure the right to represent employees through certication or voluntary recognition. Once
a union secures the status of exclusive bargaining agent, it supersedes individual bargaining
between employer and employee and carries with it the constraint that an employer cannot
bargain with another union.
But the fact that circumstances of bargaining are legally enumerated raises some dicult
problems. We tend to think of bargaining as a voluntary exercise between willing participants
who seek particular outcomes (a sale or purchase, for example) and who, if things do not
go to their liking, are entitled to walk away from the table and seek a better deal elsewhere.
Collective bargaining does not quite conform to this model. The employer is often an unwill-
ing party to negotiations; outcomes are open-ended in the sense that collective agreements
are almost innitely variable; the parties cannot simply terminate their relationship and seek
other buyers or sellers of labour; and the pressure each can apply to the other by means
of strikes and lockouts — has few counterparts in other bargaining contexts.
All of these peculiarities of collective bargaining law raise a fundamental issue: to what
extent can and should the law seek to regulate bargaining behaviour? This issue presents
itself in a variety of forms. For example, should the law attempt to prevent a truly recalcitrant
employer from merely going through the motions of bargaining? Should it permit the parties
to establish whatever terms of employment are mutually agreeable? To what extent should it
regulate the use of pressure tactics in the name of the public interest? And assuming the law
ought to proscribe some forms of bargaining behaviour, what kind of remedies will eect-
ively keep the bargaining process within appropriate limits?
Collective bargaining legislation subjects negotiations to a fairly detailed statutory timetable.
This timetable is set in motion, for the rst collective agreement, by the certication of a
trade union as exclusive bargaining agent; certication entitles the union to serve a notice
to bargain on the employer, or the employer to serve a notice to bargain on the union. In
relationships that have already seen the negotiation of at least one collective agreement,
The Statutory T imetable | :
either party can serve a notice to bargain on the other party when an existing agreement has
expired, or within a certain period before its expiry date. The precise period during which
notice to bargain for the renewal of an agreement varies from jurisdiction to jurisdiction.
The service of a notice to bargain triggers the start of the statutory “duty to bargain.”
Under Canadian labour relations statutes, that duty generally has two interrelated branches:
a duty to bargain “in good faith,” and a duty to make “every reasonable eort” to reach a
collective agreement. The Supreme Court of Canada in Royal Oak Mines v Canada (Labour
Relations Board), []  SCR , excerpted in Section : described the “good faith”
requirement as the subjective element of the duty to bargain, and the “reasonable eorts”
requirement as the objective element. Statutes in the three Maritime provinces refer only
to “reasonable eorts,” and do not mention “good faith,” but in those provinces the duty to
bargain has been interpreted as having the same subjective and objective elements as in the
rest of the country: see Canadian Union of Public Employees v Labour Relations Board (Nova
Scotia), []  SCR  (the Digby School Board case).
Once a notice to bargain has been served, the parties remain under a duty to bargain until
they reach a collective agreement. The duty does not require that they succeed in negotiat-
ing an agreement, but only that they try. Sometimes, no matter how hard they try, they may
reach an impasse. Normally, before they may resort to a strike or lockout, labour relations
legislation requires them to go through a conciliation or mediation process, usually under
the auspices of the labour ministry. This requirement of conciliation or mediation, which is a
long-standing feature of Canadian labour law, is predicated on the idea that the parties act-
ing alone will often be unable to reach an agreement, not because there isn’t any overlap in
their respective positions, but because bargaining strategies and various obstacles to com-
munication obscure potential points of agreement.
Although the state will intervene to try to help the parties reach an agreement, in general
it will not impose one on them. The most important exception to this principle is what is
called “rst contract arbitration,” which allows for state imposition of the terms of the rst
collective agreement after certication if the parties cannot settle those terms themselves.
First contract arbitration is now provided for in most Canadian jurisdictions, and is discussed
in Section :. Other exceptions to the general principle that the state will not impose a
bargain on the parties include ad hoc back-to-work legislation and specic statutes requiring
compulsory interest arbitration in certain sectors. The use of these types of legislation varies
widely across the country, and will be discussed briey in Chapter  (Section :).
Once a work stoppage (a strike or lockout) becomes legal, the duty to bargain continues,
even while a stoppage is actually underway. However, the content of the duty changes sig-
nicantly in those circumstances. If a party has complied with the duty to bargain but an
impasse has nonetheless been reached at the bargaining table, that party is allowed to break
o negotiations on the basis that there is no current prospect of progress. In a strike or a
lockout, each side hopes that the economic pressure it puts on the other side will prompt
concessions. Conversely, a party that thinks it is winning a strike or lockout can take advan-
tage of that situation to toughen its stance. “It would be naive in the extreme,” in the Ontario
Labour Relations Board’s words, “for parties to collective bargaining to expect that condi-
tions which prevailed before a strike or lockout to still prevail afterwards”: Toronto Jewellery
Manufacturers Association, [] OLRB Rep July  at .
Normally, a collective agreement will eventually be reached, with or without the assistance
of conciliation, and with or without resorting to a strike or lockout. Once a collective agree-
ment has been signed, labour relations statutes explicitly provide that (with very few excep-
tions) conict in the form of a work stoppage is no longer allowed, and the duty to bargain is
suspended until it is time to negotiate a new agreement. It should be noted that American law
is dierent in this respect; in the United States, the duty to bargain does continue during the
lifetime of the collective agreement, on matters not dealt with in the agreement.
During the life of a collective agreement, the law across Canada entitles the parties to
make changes to the agreement if they wish, but only by mutual agreement; neither party
can require the other even to discuss any such changes. Every labour relations statute in
the country now requires that a process of third-party arbitration, known as grievance arbi-
tration or rights arbitration, must be provided for in every collective agreement in order to
resolve dierences over the meaning of the agreement; strikes and lockouts are not allowed
while a collective agreement is in eect. Chapter  deals at length with the enforcement of
the collective agreement. However, it should be noted here that under the “management
rights” doctrine, to be discussed in Chapter , grievance arbitration has traditionally been
understood as applying only to disputes over matters that are dealt with in the collective
agreement, and management generally retains a right to act unilaterally on matters on which
the agreement is silent. As we will see later in this chapter, for some commentators, the fact
that the prohibition against strikes during the life of a collective agreement is broader than
the reach of grievance arbitration means that a more rigorous duty to bargain should be
imposed on management during the negotiation of the agreement.
The only signicant exception to the prohibition against strikes or lockouts during the
term of a collective agreement is the provision in a few statutes (for example, the Canada
Labour Code, sections –) that allows for the reopening of the duty to bargain if the
employer introduces a technological innovation that is likely to aect the terms and condi-
tions or security of employment of a signicant part of the bargaining unit.
Complementary to the statutory duty to bargain are provisions that prohibit changes in
terms and conditions of employment after notice to bargain has been given (what can be
called the “bargaining freeze”). This is closely related to the “certication freeze,” which pro-
hibits changes in terms and conditions during a certication campaign. The basic principles
underlying both the certication freeze and the bargaining freeze have been discussed in
Chapter  (Section :), and will not be dealt with again here.
Jurisdictions across Canada are consistent in tying the start of the bargaining freeze
to the serving of notice to bargain, and are also consistent (either expressly or by implica-
tion) in bringing the freeze to an end when a new collective agreement is signed or when
the union’s bargaining rights are terminated. However, the statutes dier signicantly as to
exactly when the freeze ends if there has been neither a new agreement nor a termination
of bargaining rights. A few statutes (Alberta Labour Relations Code, section ; British Col-
umbia Labour Relations Code, section ()) state that the freeze remains in force until a

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