Negotiating and Accessing Collective Negotiating and Accessing Collective Bargaining Agreements in Canada Bargaining Agreements in Canada

Presentation at thePresentation at theGovernment-to-Government Session and Seminar for an Government-to-Government Session and Seminar for an

Exchange of Information on Topics of Freedom of Association Exchange of Information on Topics of Freedom of Association and the Right to Bargain Collectively, 3rd Sessionand the Right to Bargain Collectively, 3rd Session

Puebla, Mexico, December 2008Puebla, Mexico, December 2008

Negotiating Collective Agreements in Canada

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Freedom of Association under the Canadian Charter of Rights and Freedoms Federal, provincial and territorial governments are subject to the

Canadian Charter of Rights and Freedoms (the Charter), which is part of the Constitution.

The rights and freedoms guaranteed by the Charter to all persons in Canada—including the freedom of association—are subject only to such reasonable limits prescribed by law as may be demonstrably justified in a free and democratic society.

A recent Supreme Court of Canada decision confirmed that freedom of association protects “the right of employees to associate for the purpose of advancing workplace goals through a process of collective bargaining.” Laws and other forms of government action cannot substantially interfere with the process of collective bargaining.

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Key Principles of Collective Bargaining in Canada

Providing exclusive bargaining rights to a certified trade union which, in turn, has a duty to represent employees in the bargaining unit fairly;

Requiring employers and certified trade unions to meet and bargain in good faith;

Emphasizing the use of dispute-resolution mechanisms (mediation, conciliation and/or voluntary interest arbitration) if the parties reach an impasse in negotiations;

Upholding the collective agreement and prohibiting work stoppages while it is in force;

Prohibiting unfair labour practices by both employers and trade unions;

Establishing labour relations boards, which have quasi-judicial status, to interpret and apply the law.

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Overview of the Collective Bargaining Process(Typical model for the private sector)

Notice to bargain Duty to bargain in good faith

Failure to reach agreementAgreement reached (no third party intervention)

Ratification (compulsory vote in some jurisdictions)

COLLECTIVE AGREEMENT IN FORCE

Award/decision

Vote on final offer

(8 jurisdictions)

Conciliation/ Mediation

Settlement

Bindingarbitration

(may be orderedfor first agreements

in 7 jurisdictions)

Legal strike/lockout

(pre-conditions apply)

Note: rules regarding collective bargaining vary in each jurisdiction (e.g., a vote on a final offer may sometimes precede conciliation). This model is based on provisions found in a majority of jurisdictions.

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Duty to Bargain in Good Faith

Private-sector collective bargaining typically takes place at the enterprise or workplace level, between an employer and a certified trade union representing a bargaining unit.

Once notice to bargain is served by one of the parties on the other, they are required to bargain in good faith with a view to reaching an agreement on the terms and conditions of employment. This means that the parties must meet with each other, engage in meaningful dialogue and be willing to find a middle ground between their opposing interests.

To protect individual rights and the collective bargaining process, a statutory “freeze” on employment conditions applies.

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Dispute Resolution Mechanisms If an impasse in negotiations is reached, conciliation, mediation

and/or voluntary interest arbitration services may be provided to the parties.

Certain conditions must be met before a legal strike or lockout can occur (e.g., undergoing a conciliation process, observing a “cooling-off” period and holding a secret-ballot strike vote of affected employees).

First agreement arbitration—under which a collective agreement may be determined for the parties—is also available in the federal jurisdiction and in most provinces.

To facilitate settlement, an employer’s final offer in negotiations may be put to a secret-ballot vote of the employees.

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Upholding the Collective Agreement In several jurisdictions, legislation provides that a collective

agreement must be ratified by secret-ballot vote of the employees in order to be valid. However, even when not required by law, ratification votes are a standard practice.

Strikes and lockouts are prohibited during the term of a collective agreement. A mandatory procedure (usually grievance arbitration) is used to resolve disputes arising from the interpretation, application or alleged violation of the agreement.

The collective agreement is binding on the parties and is enforceable in accordance with its terms.

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Prohibition of Unfair Labour Practices Unfair labour practices by employers and trade unions are

prohibited during the process of trade union certification and collective negotiations.

Examples include: – An employer interfering with or participating in the formation

or administration of a trade union. – An employer imposing any condition in a contract of

employment that restricts an employee's legal rights.– An employer bargaining collectively or entering into a

collective agreement with a trade union that is not the bargaining agent for that bargaining unit.

– An employer or trade union using threats, coercion or intimidation to compel or prevent another person’s membership in a trade union.

Accessing Collective Agreements in Canada

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Access as Standard Practice Access to collective agreements for employees is not a major issue in Canada.

Although there is no explicit legal obligation for a trade union (or an employer) to provide employees with a copy of their collective agreement, it is standard practice in Canada to do so.

A trade union has an incentive to ensure that its members are informed of their rights. If a majority of employees are dissatisfied with their union representation, procedures exist allowing them, within limits, to select another union to act on their behalf or to apply to a labour relations board to decertify their union.

In some cases, a clause is included in the collective agreement to require the employer to provide employees with a copy of the agreement, and to specify how printing costs will be shared.

The process of ratifying a collective agreement also ensures that employees are aware of its contents.

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Language of Collective Agreements

Although physical access to collective agreements is not a problem in Canada, some employees may have difficulties comprehending their collective agreement because of a language barrier.

In the province of Quebec, legislation requires all collective agreements to be drafted in the French language. This decision was made by the provincial legislature more than 30 years ago to ensure that French-speaking workers (the majority of the population in that province) can read and understand their collective agreements.

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Public Access to Collective Agreements In all Canadian jurisdictions, the parties are required by law to

file their collective agreement with a government department (such as the Ministry of Labour) or a labour relations board. Although mainly for research and statistical purposes, this provides an additional avenue for employees seeking information about their rights.

In the federal jurisdiction and most provinces, any person can access and download collective agreements through a public online database, usually free of charge. Other jurisdictions have collective agreement libraries that can be accessed by the public.

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Negotech: Example of an Online Database

Employees covered by federal legislation (and many provincially regulated employees) can access their collective agreement by contacting the Workplace Information Division or through the free Negotech database, available on the Internet at http://206.191.16.137/gol/main_e.shtml.

Negotech contains all available collective agreements in the federal jurisdiction—about 1,700 in total. It also contains the roughly 3,800 provincial jurisdiction agreements covering 500 or more employees.

In addition, it provides summary reports highlighting significant changes in recently signed collective agreements.