HR Toolkit


HR Policies & Employment Legislation

HR in a Unionized Workplace

This section of the HR Toolkit provides a conceptual overview of the various elements and phases in the field of labour relations. Although there are many similarities across the country, there are also significant differences. There is also considerable variation depending on the type of sector in which an employer is operating. Readers should consider this to be a non-specific overview of labour relations in Canada, and should refer for specific details to the legislation and processes for his or her type of organization and province of jurisdiction. 

Similar to many areas of the law, attention to jurisdiction, detail, and deadlines is critical. We strongly encourage you to contact a labour relations professional or a labour lawyer for more tailored information and advice. 

 

Important

This information is not intended or offered as legal advice and is presented for educational and information purposes only.  

Transmission of the information is not intended to create, and receipt does not constitute, a lawyer-client relationship between this site, the author(s), or the publisher, and the readers or any other user. No person should not act, or fail to act, upon this information or the contents of the HR Toolkit without seeking professional counsel. 

 

 

Terminology

Labour Relations encompass all aspects of the employment relationship between an employer and its unionized employees. It is also called Industrial Relations or Employee Relations, although the latter term could signify relationships between an employer and its non-unionized employees.

Labour Law governs the rights and obligations of workers, unions, and employers and covers areas such as certification of unions, collective agreement negotiations and provisions, unfair labour practices, dispute resolution, and union-management relationships.

Various jurisdictions and employment sectors use different terms. However, the following are relatively standard definitions of key terms.

Arbitration The process of submitting a dispute between the parties to a collective agreement to an independent tribunal or body for the purposes of resolving the dispute. When the employer and the union cannot resolve a matter involving the collective agreement, the third-party arbitrator (or board of arbitration) makes a decision about the matter in dispute. The decision of the tribunal or body is binding upon the parties. The parties can resort to arbitration for an interest dispute or a rights dispute. An interest dispute involves a dispute about the terms of the collective agreement if the parties are unable to negotiate those terms (e.g. wage increases). A rights dispute involves a decision about the interpretation and application of the collective agreement during the term of that collective agreement.
Bad Faith Bargaining

An allegation that one of the parties to the negotiation has deliberately breached its obligation to sincerely attempt to reach a collective agreement. 

Bargaining Agent

A certified trade union that has been granted rights under labour legislation to act on behalf of a bargaining unit and to be the exclusive agent for those employees. The employer is obligated to negotiate with the bargaining agent and cannot negotiate with individual employees in the bargaining unit.

Bargaining Parties

The employer and the union representing the employees.

Bargaining Unit

A group of workers in a trade, department, plant, firm, industry, or occupation, determined by a labour relations board as the appropriate unit for representation by a union for purposes of collective bargaining. 

Bargaining With Prejudice A bargaining process where the parties sign-off, or sign agreement, on the proposal, including draft language, at the time that the individual proposal is being considered. Neither side can then go back or renege on the agreed-upon proposals.
Bargaining Without Prejudice

A bargaining process where nothing is formally agreed to, or signed off, until all proposals have been considered and either agreed to as a package, or withdrawn, even though the parties may agree in principle to proposals as the negotiation proceeds.  Nothing is signed off until the end of the negotiations.

Certification

The official designation by a labour relations board of a union as sole and exclusive bargaining agent, following proof of support among employees in the proposed bargaining unit as determined by the governing labour legislation.

Collective Agreement

A written agreement between the employer and the union that contains terms and conditions of employment for the represented employees. Generally the agreement is for a defined term, subject to renegotiation at the end of the term. Also called a "collective bargaining agreement" or "contract", it is a legally enforceable, binding contract between the parties.

Concession

A concession is something that is given up - for example, a right, privilege, or a point in an argument. In labour relations terms, granting a concession involves accepting the other party's proposal. Concessions are usually two-way in an effective collective bargaining session. For example, the employer might concede a wage increase in exchange for a reduction in overall benefit costs.

Conciliation/Mediation

The process of referring a dispute to an independent third party to assist the parties to resolve the dispute. The parties are free to accept or reject the recommendations of the conciliator/mediator. In some jurisdictions and sectors, conciliation is a mandatory step in the bargaining process if the bargaining parties cannot reach a collective agreement through negotiations.

Duty of Fair Representation

The duty conferred on the union to represent the employees in a bargaining unit in a manner which is not arbitrary, discriminatory, or in bad faith, whether or not those employees have actually joined the union.

Grievance

A grievance is a legal mechanism by which the union and the employer resolve disputes between them about issues in the workplace. For example, a grievance may involve a complaint by an employee, the union or the employer alleging that the employer, or a member of management, or the union has violated a legally binding term of a collective agreement. 

The collective agreement may contain provisions for what can or cannot be grieved. For example, it may contain a provision that the union cannot grieve the discharge of a probationary employee (unless that discharge was discriminatory). The procedure for advancing and resolving or arbitrating grievances is normally contained in the collective agreement. 

Impasse

An impasse occurs when it is impossible to reach an agreement on all of some of the bargaining proposals because the parties are so far apart in their expectations and requests. 

Interest Dispute

A dispute between the bargaining parties about the proposed terms and conditions in a collective agreement.

Labour Relations Board/ Industrial Relations Board

A board established under provincial or federal labour relations legislation to administer and adjudicate labour law, including certification of trade unions as bargaining agents, determination of bargaining units, investigation of unfair labour practices, and other functions prescribed under the legislation.

Lockout

A stage in a labour dispute in which the employer refuses work to employees or closes its establishment in order to force the settlement of a collective agreement on its proposed terms.

Management Rights

The body of rights that are not the subject of negotiation between the parties or of a collective bargaining agreement. These rights may include level of staffing, work scheduling, performance appraisal, discipline, etc. Those rights are specifically reserved through a "management rights" clause in the collective agreement. 

Certain rights can be inherent (e.g. an organization's right to appoint a board of directors) while others may have to be specifically reserved by management (e.g. an organization's right to discipline employees without prior consent by the union)

Memorandum of Settlement

A formal document executed by the bargaining parties setting out the terms voluntarily negotiated for a collective agreement. Such a memorandum typically requires ratification to become effective.

Organizing

The process by which a union attempts to organize a non-unionized group of employees to form part of a union. Also called an organizing drive.

Ratification

Formal approval by the respective principals of both negotiating parties of a proposed memorandum of settlement. The employees represented by the union typically ratify the memorandum of settlement through a secret ballot vote. Ratification by the employer is through a vote of the board of directors or governing body.

Rights Dispute

A grievance between the parties about how a term or condition of the collective agreement has been applied to an employee or group of employees. Could also entail a policy grievance by the union or a grievance by the employer against the union.

Statutory Freeze

The period of time, from the filing of an application for certification and until the right to lock out or to strike is exercised or an arbitration award is handed down, during which the employer cannot change the conditions of employment of employees without the written consent of each union seeking certification or, where such is the case, the certified union. The statutory freeze also generally operates during the period after the expiration of the collective agreement until the right to lock out or to strike is exercised or until an arbitration award is handed down.

Strike

A cessation of work by the employees or a refusal to work or to continue work by employees in combination or in accordance with a common understanding for the purpose of compelling an employer to agree to terms or conditions of employment. Usually the last stage of collective bargaining when all other means to reach an agreement have failed. Generally, strikes are illegal once a collective agreement is in force.

Unfair Labour Practice

A practice on the part of the employer or the union that violates a federal or provincial labour law.

Union Security

A provision in a collective agreement designed to protect the institutional authority of the union. Examples of union security clauses are: (1) closed shop, an agreement between union and employer that the employer may hire only union members and retain only union members in the workplace; (2) union shop, an agreement that the employer may hire anyone he wants, but all workers must join the union within a specified time after being hired and retain membership as a condition of continuing employment; and (3) open shop, a provision that no employee is required to be part of the union to secure or retain employment.  A modified union shop is where the employee is represented by and must pay dues to the union (called "mandatory check-off") as a condition of employment. 


Labour Legislation

By and large, every employee has the right under labour legislation to join and participate in a trade union of his or her choice. However, labour legislation may specifically define what is an employee and it is important to check the legislation for the particular jurisdiction. For example, in some jurisdictions managers (as defined in the legislation) would not be permitted to join or participate in the trade union.

Under the Constitution of Canada, labour legislation is primarily a provincial responsibility.  Each province has its own labour legislation to govern workers and employers in the province.  However, the federal government has jurisdiction for labour legislation in federally regulated industries, such as banks, air transport and airports, various telecommunications concerns, certain extra-provincial or international industries, and Crown corporations. 

In general, the purpose of labour legislation is to facilitate the relationship between an employer, its employees, and a trade union, most notably during union organizing, certification, collective agreement negotiation, strikes and lockouts, and dispute resolution.

The legislation also typically confers penalties on the party that breaches its obligations under the legislation, particularly if the party commits an unfair labour practice or acts discriminatory or in bad faith towards employees who are attempting to exercise their rights under the legislation.

Frequently, regulations are enacted under the legislation to deal with specific rules or procedures. For example, the British Columbia Labour Relations Code has a regulation prescribing the type of evidence required to demonstrate support for union representation purposes.

 

Links and Resources

The applicable federal and provincial legislation and regulations can be accessed at www.canlii.org.


Certification

Certification is the process by which a trade union is legally recognized as the exclusive bargaining agent for a group of employees. In order to be certified, the union must demonstrate that it has the support of the employees in the proposed bargaining unit. The level and type of proof varies from jurisdiction to jurisdiction. Some provinces require that a vote be taken of the employees as proof of their desire to be represented by a union.  

In most jurisdictions, the union must also satisfy the labour relations board that it has the prerequisites to be recognized as a valid or viable trade union before it can become certified.

At the federal level, and in some provinces, a labour board has the power to automatically certify a union if the employer commits an unfair labour practice and, but for that practice, the union would likely have had the requisite amount of employee support for the union. 

Once certified, the union acquires the right to bargain with the employer on behalf of the employees in the bargaining unit and to enter into a collective agreement setting out the terms and conditions of the employment for those employees. In exchange for that right, the union has the duty to represent all of the employees in the bargaining unit in a manner which is not arbitrary, discriminatory, or in bad faith, whether or not those employees have actually joined the union.

Frequently, the employer disagrees with the union on what might be the appropriate bargaining unit or on what specific employees will fall within that unit. There is a specialized process for dispute resolution on those issues.

The employer can also voluntarily recognize a trade union as the sole bargaining agent for its employees.

After certification, the employees will typically set out a constitution, by-laws, and procedures for their union local. They will also appoint certain individuals to speak on their behalf (e.g. a bargaining committee, union stewards who will carry forward grievances, health and safety representative, etc.).


Collective Bargaining

Once a union has been certified or voluntarily recognized, the employer and the union must meet in an attempt to reach a collective agreement. The employer must respect the statutory freeze period and cannot change the terms and conditions of employment for its employees until an agreement has been reached voluntarily, until there is a lockout or strike, or pursuant to the arbitration provisions in the legislation.

The collective agreement is a contract setting out the terms and conditions of employees in the bargaining unit. Once ratified, it becomes a legally enforceable and binding contract. It normally has a defined term and is subject to re-negotiation on a pre-determined schedule.  Unless the legislation otherwise specifies, the agreement usually states whether it will expire at the end of the term, until it is re-negotiated, or whether it will continue in full force and effect until a renewal agreement is reached. 

As soon as a union represents the employee, the employee and the employer cannot negotiate with each other over individual terms and conditions of employment. The union is the sole and exclusive bargaining agent for the employees it represents. The employer must deal with the appointed union representatives.

The terms and conditions of employment will vary from workplace to workplace. Typically, the following types of provisions are contained in collective agreements:

Purpose:

  • Recognition and scope (e.g. description of the bargaining unit)
  • Management rights
  • Union security
  • Representation
  • Wages
  • Benefits
  • Vacation
  • Health and safety
  • Hours of work, overtime
  • Dismissal and suspension
  • Layoff and recall
  • Contracting out
  • Grievance procedure
  • Arbitration
  • Term of the agreement (Duration)

One of the fundamental protections usually contained in a collective agreement is an employee's seniority right. Seniority provisions are negotiated into collective agreements for the benefit of the senior (i.e. in terms of length of service) employees. The provisions seek to protect and give preference in jobs, promotions, layoffs and recalls, and other opportunities to employees with greater seniority. For example, in a layoff situation, the employee with the most seniority will generally be the one who is last laid off (the "first in, last out" seniority rule). Seniority confers value on an employee who expends his or her energies and efforts on behalf of his employer over a period of time.

In some provinces, labour legislation mandates certain provisions for collective agreements, for example:

  • Prohibiting strikes or lockouts during the term of the agreement
  • Stipulating that the collective agreement be for a minimum term of one year
  • Requiring that every collective agreement contain a provision for the final and binding settlement, without stoppage of work, of all disputes between the parties regarding the agreement

Of critical importance is that a term or condition of a collective agreement cannot diminish or take away rights that an employee would otherwise have had under law. For example, the employer and union cannot agree to provide for lower than the minimum wage or to eliminate a statutory holiday.

The parties should be aware that, even though the collective agreement is silent about a legal right or obligation, that right or obligation is not eliminated. Indeed, the right or obligation may form part of the collective agreement even in the absence of language. For example, arbitrators have the lawful right to assume that the prohibition against discrimination in Human Rights Codes is poured into a collective agreement even if the agreement does not contain language to that extent. The same principle holds true for other employment legislation, such as Employment Standards and Health and Safety.

The Government of Canada sponsors a useful, up-to-date website containing collective agreements from employers and unions across Canada, no matter the province of jurisdiction, called Negotech. Customized searches can be easily done through the database. Several provincial labour ministries also provide access to collective agreements in the specific provinces.


Dispute Resolution

There are generally two types of disputes arising from a collective agreement. One is the interest dispute which is a dispute between the bargaining parties about the proposed terms and conditions in a collective agreement. The other is a rights dispute which is a dispute between the parties about the application of a specific provision in the collective agreement to an employee or a group of employees. A rights dispute can pertain to an individual employee or group of employees or can pertain to a policy of the employer that affects all employees in the bargaining unit.

 

Interest Disputes

Sometimes despite their best and sincere efforts, the parties are not able to reach an agreement voluntarily. At some point in the process, the employees have the right to strike and employer has the right to lock out the employees (or either party can impose some other form of work stoppage or slowdown).

All jurisdictions require that employees take a compulsory strike vote prior to going on strike, although the point at which the vote must occur in the collective bargaining process, and the point at which the vote expires, varies from province to province. Some provinces require that a majority of the employees in the bargaining unit must vote in favour of a strike; others require only a majority of those employees who actually vote.

In some provinces and at the federal level, the Minister responsible for Labour or the Labour Board must be advised before a strike or lockout commences. In some provinces, a strike or lockout cannot be commenced until a mediator/conciliator has been appointed to assist the parties to reach an agreement. Only Manitoba and Quebec have no formal prerequisites to a strike or lockout (other than by employee vote).

In most jurisdictions, the parties may agree to submit the dispute to binding interest arbitration. They can do this in addition to or instead of a strike or lockout. In some provinces and at the Federal level, provision is made for the jurisdictional Minister of Labour to establish an Industrial Inquiry Commission, or some other body, to assist in the settlement of the dispute.

Depending on the jurisdiction, arbitration may be mandatory if the parties are attempting to reach their first collective agreement.

In addition, the Federal Government and some provinces provide for circumstances where the employees must vote on the last offer proposed by the employer, or in some cases by the union.

 

Rights Disputes

Most provinces require that the collective agreement provide for the arbitration of any disputes arising from the interpretation, application, operation, or alleged violation of a term of the collective agreement, including whether the issue is indeed arbitrable. A rights dispute is often called a grievance.

Generally, collective agreements will include a grievance procedure that sets out the various progressive steps that the parties will take prior to referring a dispute to arbitration and the timelines for doing so.

Typically, if internal dispute resolution fails, the union has the sole discretion (subject to its duty of fair representation) on whether or not it wants to submit an employee's grievance to arbitration. The union has carriage of the grievance and pays for any of its costs in advancing it to arbitration. While the employee has the right to be present during any of the dispute resolution hearings (grievance or arbitration), he or she does not have the automatic right to advance a complaint through the various stages of the grievance or arbitration processes.

Once at arbitration, it is not unusual for the parties to agree to settle their differences with the arbitrator acting as mediator rather than decision maker. Obviously, a mutually agreeable settlement is better for all parties than a third-party imposed decision.

If the matter is arbitrated, the decision of the arbitrator is final and binding on the parties and is generally enforceable through the civil courts.

There are frequent differences of opinion between an employer and a union on whether or not certain issues are capable of being the subject of arbitration (i.e. are arbitrable). It is important, therefore, that a labour relations professional or a lawyer assist the parties to construct the grievance and arbitration language of a collective agreement in order to minimize the frequency of those differences.

 


Union/Management Relationships

Respect is the key to a successful relationship between the employer and the union representing its employees.

The employer must respect the role of the union as the sole and exclusive agent of the employees. The union must respect the employer's exclusive right to manage its operations and to direct its work forces. Both parties must recognize and acknowledge their respective rights and obligations under labour and other employment legislation and under the collective agreement, and the rights and obligations of the employees covered by the agreement.

Above all, the employer must respect the fact that the employees have a right to join and participate in a union, including the right to strike, without fear of intimidation, coercion, harassment, or undue influence by the employer. The union must also abide by its obligations to treat all employees fairly and in good faith, and to treat management with appropriate respect.

The employer and the union must agree to and then respect the overall purposes of a collective agreement: (1) to establish mutually satisfactory relations between the employer and its employees; (2) to establish and maintain satisfactory working conditions, hours of work, and wages for all employees who are subject to the provisions of the agreement; and (3) to provide procedures for the prompt and equitable resolution of disputes.

One of the fundamental principles of labour law and labour legislation is to encourage both parties to a collective agreement to reconcile and resolve their differences and disputes. To foster good relationships, both parties should commit to resolving those differences and disputes in a proactive, collaborative way that embraces the principles of fairness, respect, and dignity. As much as possible, disputes should be resolved between a worker and his or her supervisor, at the first instance. An environment of respectful front-line resolution should prevail. Third party intervention should only be used as a last resort when the parties are at an impasse and cannot see their way to a voluntary resolution.

The employer must provide fair and competitive wages, benefits, and working conditions when compared to similar workplaces. It must share sufficient and topical information with the union to permit the union to represent its members fairly and diligently. It must openly listen to the union as the collective voice of the employees especially in matters dealing with policy or operational efficiency and effectiveness. It must involve the union in issues where the employees may be negatively affected by operational or financial plans.

Both parties should work toward establishing and fostering a two-way communication system. They should not only come together to resolve a dispute. They should build collaborative strategies on ways to further their mutual goals, to provide efficient and effective services to their clients or customers, and to make the workplace better for the employees.

A co-operative union-management relationship must be built on a foundation of mutual benefit, honesty, fairness and - most importantly - trust.

 


Links & Resources

 

Tools & Templates

 

Recommended Reading
  • Contract Clauses, 3rd Edition - Sack & Poskanzer, a Lancaster House publication.
  • Collective Agreement Arbitration in Canada , 4th Edition - Palmer & Snyder, a Butterworth's publication
  • Canadian Labour Arbitration, 4th Edition - Brown & Beatty, a Canadian Law Book publication.

 

Links to provincial and territorial labour and other relevant legislation:

Alberta

Alberta Employment, Immigration and Industry - Safe and Fair Workplaces

This site provides a searchable database of collective agreements in Alberta. Links are also available for mediation services provided by the province.

Alberta Labour Relations Board

The site has numerous useful publications dealing with unionization and proceedings before the Board.

 

British Columbia

BC Labour Relations Board

This is a comprehensive website that includes a practical guide to the BC Labour Relations Code. 

 

Government of Canada

Labour Program

This site primarily deals with labour relations for federally regulated industries.

 

Manitoba

Manitoba Labour and Immigration

This bilingual website has information about legislative policy and services related to labour relations in the province.

Manitoba Labour Relations Board

This site has a handy printable guide to Manitoba's Labour Relations Act, as well as information brochures on a number of topics.

 

New Brunswick

New Brunswick Department of Post-Secondary Education, Training and Labour

This bilingual website includes general information about legislation, mediation, grievances, and arbitration as well as a section on frequently asked questions. It also contains a searchable collective agreements database. 

 

Newfoundland and Labrador

Labour Relations Agency

This site provides information about the services offered by the governmental labour relations division, including information on the interest based negotiation process. 

Labour Relations Board

This site outlines the mandate of the Labour Relations Board and provides useful information about certification in the province.

 

Northwest Territories

Northwest Territories Department of Justice - Labour Standards

This site contains little information about Labour Relations, but it does provide contact information for the Labour Services office - we encourage you to be in touch with them if you have any questions about labour relations in the Territories.

 

Nova Scotia

Nova Scotia Environment and Labour - Labour Standards Division

This site has information about the Trade Union Act in Nova Scotia as well as some useful publications on topical issues related to labour relations. It also has several relevant databases available by subscription.  Information about the mandate of the Labour Relations Board can be accessed by through a link on the main page.

 

Nunavut

Government of Nunavut

There is little information on the government of Nunavut site regarding Labour Relations.  You can contact the Labour Services Officer in the Department of Justice with any questions you have regarding Labour Relations.

Ontario

Ontario Ministry of Labour - Labour Relations

This site outlines the Ministry's labour relations services and provides collective bargaining highlights for various employers and unions in the province. It also contains a section on frequently asked questions.

Ontario Labour Relations Board

This website provides information about the various Board processes and applications, as well as a list of available publications and information bulletins.

 

Prince Edward Island

Department of Environment, Labour and Justice

This site contains general information about labour relations.  It contains a link to information about the Labour Relations Board that, in turn, has a directory of unions operating in the province. 

Québec

Commission des relations du travail

Content is only available in French.

Saskatchewan

Saskatchewan Department of Advanced Education, Employment and Labour

This site has information about the services offered by the province, including training offered on labour relations topics.

 

Yukon

Department of Consumer and Safety Services

This site does not contain specific information about labour relations.  We encourage you to call the Labour Services branch with your questions. 

 

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