08: Collective Agreement Administration

What Happens Next?

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In September 2018, an arbitration decision determined that National Grocers Co. Ltd. (owned by Loblaws Inc.) had to pay overtime to its truck drivers who worked in excess of 44 hours per week, in accordance with Ontario’s Employment Standards Act (ESA). This decision came as the resolution of a grievance that was filed in 2014 by one of the drivers, Trevor Enos, who was represented by and a member of the union UFCW 1006A.

At the end of a four-year hearing, the union was able to make the winning argument that its membership was not excluded from the legislative requirements of the ESA. The employer (National Grocers Co. Ltd/Loblaws Inc.) argued, unsuccessfully, that the truck drivers were not bound by the overtime provisions of the ESA. They took the stance that the work done by the workers would fall under a different category and should be compensated under the jurisdiction of highway transport drivers. The arbitrator, Gordon F. Luborsky, sided with the union, and this meant that the employer would have to pay the overtime as ordered.

By September 2019, however, as identified in this CBC report, the overtime had not been paid out. Instead of settling the outstanding compensatory debt, Loblaws Inc. filed for a judicial review of the decision with the Ontario Divisional Court. While the report does not provide an explanation for the employer’s actions, the overtime payments owed to the employees, if dated back to 2014, would be significant. Loblaws Inc. has claimed to have set aside the funds it may need to pay the employees out.

It’s possible this case may not be about the money though.

While the monetary (overtime pay) issues seem to be the priority, this case provides us with some insights into both the legislative and procedural matters that come with administering a collective agreement.

As noted in the CBC article, employers cannot abdicate out of the law. If a collective agreement is ‘silent’ on a particular item, such as overtime, then the minimum standards of the ESA would, typically, apply. The question that appears to arise from this case is whether or not the ESA is the correct, applicable legislation. It makes sense that the employer would file for judicial review if the employer believes that the arbitrator erred in his decision about which piece of legislation does and should apply.

In the meantime, union representatives will continue to file grievances, as the Teamsters have done in Ottawa, based on similar circumstances, and the employers will continue to not pay. Until this matter is resolved by the penultimate, or even ultimate, third party, it seems that both sides to this dispute will continue as they have to date.

Discussion Questions:

  1. As the head of HR for Loblaws Inc., what steps will you put into place to prevent this from happening in the future?
  2. As the chief negotiator for UFCW, what language will you want to use to negotiate into the collective agreement at the next round of collective bargaining?
  3. As a member of the bargaining unit in this case, what do you think would be a ‘fair’ result for you?

Job Security in the Newspaper Industry

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“No layoffs for newspaper workers.”

No, this is not an embellished headline from a tabloid. This comes from the Canadian Labour Reporter: “Winnipeg Free Press workers ratify new agreements with no layoff clause.”

Why is this so shocking to the labour relations world? It’s because no layoff clauses are very rare in any collective agreement. No employer wants to be obligated to keep employees when they have no work available. Even more shocking is the fact that this no layoff clause is in the traditional newspaper industry, which has been in significant decline (with large layoffs) since the invention of the Internet.

Unifor, the union that negotiated the no layoff clause, is claiming it as a huge win for their members. (click here to read Unifor’s news release)

Is it a true win for the union and its members? In reality, it is only a two-year deal, so the employees do get job security but only for two years, what happens after that? Who knows? In addition, in this new collective agreement there was no wage increases for the employees but the union was able to stabilize the workers’ pension and that is a big win.

This Unifor deal may not be the most lucrative collective agreement ever. However, it is a very interesting event that may have an impact on other collective bargaining negotiations in other industries. Keep posted.

Discussion Questions

Research other collective agreements to see if they have a “no layoff” clause.  Are they in the public sector or the private sector?

In future negotiations, do you see Unifor being successful in adding a “no layoff” clause with other employers in other industries?  Why or why not? Defend your argument.

Flipping Out Over ‘Contract Flipping’

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Contract flipping is not a widely publicized or known strategy in the employee and labour relations environment.

It is, nevertheless, a staffing scheme that exists and is used with more frequency than publicity.

Contract flipping is the practice of terminating existing unionized employees under one contract and then hiring the same employees for lesser wages and benefits under a new contract. This can be done if the business is sold from one entity to another and/or if there are no successor rights within the existing collective agreement.

While this is not an illegal or illegitimate action on the part of the employer, it is a practice that has little benefit for existing employees. When this happens, the economic impact on individuals can be devastating. On the employer side, however, contract flipping allows for significant savings and labour-related cost reductions.

In British Columbia, contract flipping has become an issue for resolution within the legislative framework. The current government in British Columbia has introduced legislation to limit the practice of contract flipping.

The first approach by the government of British Columbia was targeted in the public sector for seniors’ homes and health care facilities with the introduction of Bill 94.

Click here to read about the proposed changes to contract flipping through Bill 94.

The impact of the proposed legislation has moved into the private sector as well, as noted in a recent article about the impact of contract flipping on janitorial workers employed by BC Hydro.

Click here to read the article.

These articles provide us with the example of how the government becomes a key actor in changing the legislative environment. In this case, the actions of the provincial government in British Columbia come from the premise of social justice when dealing with the matter of contract flipping and its impact on its citizenry.

As of the timing of this post, the current status of Bill 94 is unclear. What is clear, in this case, is the need and the resulting actions of government intervention that are required in order to institute a change in public policy.

Discussion Questions:

  1. Is there a benefit to contract flipping for employees? Explain your rationale.
  2. What are the potential risks to employers who use contract flipping as part of their staffing protocols?
  3. As the HR professional for Alpine Building Maintenance, what advice will you give to the company’s decision makers about the timing of hiring former BC Hydro janitorial workers?
  4. In your opinion, why does the British Columbia government want to change the practice of contract flipping in the health-care (public services) sector?

Are the Teamsters the new Luddites?

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Oh, how workplace relationships have changed since the Industrial Revolution of the 1800s.

Or have they? Are the Teamsters the modern-day equivalent of the 18th century Luddites? These are very interesting questions for a Human Resources practitioner to ponder.

Granted, with the rise of unions in the 19th century, there is greater employment and safety laws in the 20th century, and greater government regulations to protect workers. Due to this, the quality of working life for the individual workers has improved greatly. But has the fundamental relationship between workers and employers really changed?

That thought brings us to current events that reinforce that the fundamental relationship between employers and employees in the 21st century is the same as the 18th century.

Here is a brief labour relations history lesson for those of you who don’t know who the Luddites were, and need a refresher about the Teamsters.

Let’s start with getting to know the Teamsters. Here is a brief background right from their website:

  • The Teamsters are America’s largest, most diverse union. In 1903, the Teamsters started as a merger of the two leading team driver associations. These drivers were the backbone of America’s robust economic growth, but they needed to organize to wrestle their fair share from greedy corporations. Today, the Union’s task is exactly the same.
  • The Teamsters have over 1.4 million union members.

Now, who are the Luddites?

The term Luddite now refers to an individual who is against the effects of technological change. To be more historically correct, the Luddites were against new technology that changed working methods that reduced jobs. In other words, they were against automation. To read a history of the Luddites, click here.

In reality, the Luddites were British craftsmen who smashed and burned the new technology of weaving machines that was taking away their highly skilled jobs. The Luddites wanted the government to ban the new weaving machines but they did not reach their objective. The government passed a law that anyone who damaged a machine would be put to death.

What are the Teamsters trying to accomplish two hundred years later? They are trying to prevent a loss of trucking jobs to drones and autonomous vehicles. Currently, the Teamsters are in collective bargaining negotiations with UPS and have placed demands on the table that UPS will not use drones or autonomous vehicle to deliver packages.  Click here to read greater details about the UPS/ Teamsters negotiations.

The Teamsters have not acted the same way as the Luddites. They have not attempted to sabotage, smash, or burn the new technology. They have been more successful than the Luddites in obtaining political action. The Teamsters have:

So, the fundamental relationship between employers and employees has not changed. Each party wants to protect their interests and increase their share of the economic pie.  Will the Teamsters be successful against the rise of new technology, unlike the Luddites?  Only time will tell, but past history is not on the Teamsters side.

Discussion Questions:

What are your thoughts – should government step in to prevent automation from taking away jobs?

Research the advancements on Artificial Intelligence (AI). What jobs are experts predicting will disappear in the next 20 years? How is HR and society as a whole going to respond to these changes?

Meeting Matters

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In any effective labour-management strategy, the need for powerful communication between the parties is paramount. Organizations use the tool of the labour-management committee process and structure in order to achieve this need.

Labour-management committee meetings are typically ascribed in a collective agreement. The process as outlined in the language of the collective agreement may include:

  • the timing of meetings
  • where the meetings will take place
  • how many representatives are designated for both employer and union side

The purpose of the labour-management committee process is usually defined so as to promote and pursue harmonious relations between the parties through these meetings in order to ensure effective communication.

As we know through our industrial relations studies, the collective agreement is the employment contract between two parties – the employer and the union representing a particular group of employees. Both parties must abide by the specific language in the collective agreement. Otherwise, the contract (in the form of the collective agreement) has been violated.

Labour-management committee meetings are supposed to enable the union and the employer to check in with each other on common issues, identify common concerns and, hopefully, work through to solutions in a constructive way from a problem-solving perspective.

In theory, all of this should be implemented smoothly given the commitment by both parties to abide by the collective agreement. Reality, however, offers a different perspective for our consideration.

In an article published by the Queen’s University Center for Industrial Relations, Gary Furlong explores the mutual dynamics of some of the power struggles and communication issues that are typical in the real-world experience of labour-management processes.

Click here to read the article

As noted in this article, while it assesses the challenges from both an employer and union perspective, the focus is on how the employer’s actions impact the labour relationship.

From the union side the perspective is, not surprisingly, a bit different.

A recently published article by rankandfile.ca offers a view of the labour-management process from the union side. The article itself is clear through its title ‘How to Act Like a Union on a Labour Management Committee’.

Click here to read the article

This article provides us with an excellent perspective on how the union views itself as the collective entity through the consistent application of solidarity, always. It provides us with the understanding that the labour-management committee process is to be used as an extension of the collective bargaining process.

Also, it identifies that even the seating arrangements during a labour-management meeting must honour the single voice and the identity of the union as one collective source. To try to separate union members during a meeting through seating arrangements is not an acceptable practice as it is perceived as unequal treatment. The only equal parties in a labour management meeting are the entity of the employer and the entity of the union – not individuals who may speak from multiple, self-reflective perspectives.

Does this approach ascribed to the union fly in the face of harmonious relations between the parties? Not necessarily.

Understanding the other side is the first step in the development of effective relationships. Implementing that understanding remains the challenge for us all.

Discussion Questions:

  1. How can the Human Resources role facilitate effective labour-management communication?
  2. Do you agree with the perception that seating arrangements matter in a meeting setting? Why or why not?
  3. As the employer representative in a labour-management committee meeting, how will you respond to the collective approach described in the union-side article?
  4. Why is the need to ensure that committee meetings are extensions of the collective bargaining process important to the union? How can this approach be used effectively by the employer?