Picture a common scene taking place in a unionized workplace in Canada. In this scene, we see the organization’s HR Practitioner trying to figure out what, exactly, certain phrases within a Collective Agreement mean. When the HR Practitioner asks the union representative for clarification of the item, she receives one perspective. When she asks a supervisor for clarification on the same item, she receives a completely different response.
Then, we see the HR Practitioner with a bit of a headache trying to make sense of it all as the following questions appear in front of her:
- How can one simple sentence mean two totally different things?
- Why don’t Collective Agreements use clear and unequivocal language that makes sense to everyone who is bound by its meaning?
- Who writes these agreements anyway?
This is the good, the bad, and the ugly reality of Collective Agreement language and administration. Living with the management of a Collective Agreement means that the language can and will be interpreted in two (or more) completely different ways, depending on the situational point of view.
We see this in a recent decision by a Federal tribunal. In this case, the tribunal upheld a grievance for an employee in one fact-based situation but dismissed a similar grievance for a second employee in a different fact-based situation. Both employees had filed grievances regarding the same language provisions within their respective Collective Agreement. Both employees were penalized for coming in late to work due to circumstances, allegedly, outside of their control.
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A few things come to mind as a result of this case.
First, from the Tribunal’s perspective, the way language was interpreted and applied brought the element of reasonableness into consideration, for both the employer and the employee in each circumstance.
Second, the ability of the employee to control their individual environments and make their own decisions was also a significant consideration in each case.
Most importantly, we must consider the fact that the language in most Collective Agreements is written through a process of negotiation, where every word comes at a price. The words themselves may be used as a bargaining chip to achieve something else during the collective bargaining process. All too often, the language that gets written into a Collective Agreement is produced in the middle of the night by union and employer representatives who are both exhausted and focused on reaching a settlement. Wordsmithing to get certain phrases just right is not something that the parties want to do when the deal is close to being done.
As a result, the implementation and management of the Collective Agreement takes on interesting twists as it gets brought to life by all of the parties involved.
When the curtain falls on this workplace drama, we see the HR practitioner taking the time to consider multiple elements as she proceeds with the task of interpreting the Collective Agreement, in a fair and reasonable manner.
- Which employee grievance do you agree with the most? Why?
- As an HR practitioner, what will you do to ensure a consistent approach to the application of language in a Collective Agreement that is fair to everyone?
- How would you re-write the Collective Agreement language used in the article so that it would have less chance for misinterpretation from an employer perspective?