Area of Law: Employment Law
Answer # 625
Rights typically found in Collective AgreementsRegion: Ontario Answer # 625
Collective Agreements deal with many employment issues, such as wage rates, health benefits and workplace safety. It is important to remember that any particular Collective Agreement may deal differently with any particular right.
Six common rights found in most Collective Agreements include:
- Seniority layoff
- Just cause discipline
- Grievance and arbitration procedures
Many rights in a Collective Agreement are based upon an employee’s seniority.
Seniority is approximately the same as an employee’s length of service. Certain periods may, however, not count toward an employee’s seniority even though they are part of the length of service. For example, if an employee is promoted to a management position and later returns to the bargaining unit, some or all the period in management may not count toward the employee’s seniority even though it is part of the employee’s length of service.
Seniority is often used as a consideration in situations where there is a competition between two or more employees, such as if one person is to be laid off or transferred. Length of service is also used in situations where there is no competition but the employee is pursuing his or her personal rights. For example, in calculating how much vacation an employee is entitled to.
Often, the length of service for the purpose of determining seniority does not begin until an employee completes a probationary or trial period of employment.
2. Seniority layoff
Seniority can also be very important when determining who is to be laid off. Common in Collective Agreements is a rule that if a layoff is required, employees will be selected in reverse order of seniority. Employees most recently hired will, therefore, be the ones most likely to be laid off. It is a ‘last in, first out’ rule.
The layoff rule will usually be modified, however, to allow the employer to retain the services of employees who are especially needed because of their skills and abilities. For example, if the company only had one electrician, he or she would probably not be caught by operation of the general rule.
The seniority rule may be applied either on a bargaining unit wide basis, or on a department, or classification basis.
Where a surplus of employees occurs in a particular department or job, requiring that someone with seniority be laid off, that senior employee may in fact have seniority-based rights, which allow them to take a junior employee’s job, even if that junior employee works in a different department. This process of an employee with more seniority displacing a junior employee is called bumping. The extent of bumping rights should be clearly dealt with in the Collective Agreement, although in fact, many Collective Agreements are unclear about the exact procedure.
3. Just Cause discipline
The third right commonly found in Collective Agreements is the requirement that discharge or discipline of employees must be for just cause. This rule probably will not apply until the employee finishes a probationary period of employment.
An employer is required to prove just cause where it terminates or disciplines an employee after certification. An employer is also be required to prove just cause where it terminates or disciplines an employee after the start of a lawful strike or lockout. In both cases, the protection offered through just cause continues until:
- the parties have reached a collective agreement, or
- the union ceases to represent employees in the bargaining unit.
The right not to be disciplined without just cause during certain bargaining periods will be enforceable through grievance arbitration.
What is just cause?
The single most common dispute between unions and employers is what constitutes just cause for discipline. Many thousands of arbitration cases have been held to resolve such disputes.
The Collective Agreement may have specific rules, in which case such provisions answer the question. For example, many agreements say that an employee absent without leave for more than three days is considered to have terminated his or her employment.
In most situations, it is only with a general knowledge of the results of the many past cases that an advisor can know what will be just cause to support a particular disciplinary decision.
A fourth right commonly found in Collective Agreements will usually provide that employees are entitled to more vacation each year as their length of service increases. An additional week of entitlement may, for example, be added after five years and after 14 years of service.
The amount of vacation pay an employee receives is often a slightly separate issue from the amount of time off they are entitled too. Vacation pay is usually a percentage of the previous year’s earning. Most commonly, an employee will receive 2% of the previous year’s earnings as vacation pay multiplied by each week of vacation the employee is entitled to.
Collective Agreements vary widely as to whether an employee must take vacation, when it must be taken, and how it is scheduled. At a minimum, most agreements require that employees take at least two weeks’ vacation each year.
A fifth right included in most Collective Agreements typically provides for 9 to 13 holiday days per year. The agreement will provide that to get holiday pay the employee must qualify. The required qualifications vary widely from agreement to agreement, but often include a rule that employees must actually work the scheduled workday before and after the holiday, unless they are on a scheduled leave. If on leave, the rule may require that the employee have actually worked a day within the two weeks preceding the holiday.
6. Grievance and arbitration procedures
The sixth right that is included in almost all Collective Agreements is a grievance and arbitration procedure. The purpose of the procedure is to resolve disputes between employees and the union on the one side, and the employer on the other, in regards to matters covered by the Collective Agreement. There are many variations in the actual process set out from agreement to agreement. For more information about these procedures, refer to topic 626 – The Grievance and Arbitration Process.
For more information about Collective Agreements, visit the Ministry of Labour, Training and Skills Development website. For federal matters, refer to the Government of Canada’s website on collective agreements for the public sector. For legal help and assistance, contact an employment lawyer.
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