Changing a job description so it isn't governed under the agreement
Question: Is there a way to determine whether work performed in a unionized environment can be reclassified to fall outside of the collective agreement? Can a collective agreement play a role in defining a position or work performed?
Answer: Yes; whether work performed falls outside the collective agreement can be determined by reference to the certification order issued by the applicable labour board and by the collective agreement itself. Collective agreements typically contain a provision dealing with “union jurisdiction,” which may be supplemented by job classification or wage rate information that can be relied upon to determine whether the work performed is within or outside the bargaining unit. However, most employers are reluctant to narrowly define job characteristics in a collective agreement, as a narrow definition runs the risk of employees resisting work assignments based on the notion that “it’s not in my job description.”
As to whether the work can be reclassified, if the changes to the job take it outside the bargaining unit, typically employers need to go to the labour board to amend the bargaining unit description to ensure the job as defined in the certification order falls outside the bargaining unit. Contentious bargaining unit construction issues typically fall within the sole jurisdiction of a labour board. Employers are usually prevented from engaging in collective bargaining “to an impasse” to take a job outside the bargaining unit (C.U.P.E., Local 1602 v. Haliburton, Kawartha, Pine Ridge District Health Unit). The expectation to refrain from bargaining to impasse was reiterated in Kingston Typographical Union, Local 30204 v. Kingston Whig-Standard, where the Ontario Labour Board said: “It is accurate to state that a party to a collective agreement cannot lawfully bargain the unit configuration to impasse.”
Jobs within a bargaining unit can be reclassified, which may be a done in future collective bargaining, or the employer may be able to rely upon its management rights under the collective agreement to implement the reclassification. Some collective agreements contain specific provisions dealing with reclassification.
Because collective agreements play a role in defining positions on work performed, it is very important to ensure that the wording associated with work within a collective agreement is drafted in such a way to deal with any future changes in the work.
For more information see:
•C.U.P.E., Local 1602 v. Haliburton, Kawartha, Pine Ridge District Health Unit, 1997 CarswellOnt 5504 (Ont. Lab. Rel. Bd.).
•Kingston Typographical Union, Local 30204 v. Kingston Whig-Standard, 2008 CarswellOnt 6613 (Ont. Lab. Rel. Bd.).
Brian Johnston is a partner with Stewart McKelvey in Halifax. He can be reached at (902) 420-3374 or [email protected].
