Ontario employers in unionized sectors can face unique challenges and considerations regarding collective bargaining with unionized employees. Whether you are a seasoned human resource professional or a business owner entering into your first negotiation process, it is essential to understand the fundamental principles and practices of collective bargaining to facilitate constructive dialogue and reach mutually beneficial agreements for all parties involved.

This blog provides a primer on collective bargaining for Ontario employers with an overview of collective agreements and the collective bargaining process, shedding light on key concepts, legal frameworks, and best practices.

What Is a Collective Agreement?

A collective agreement is a written contract between an employer and a union that outlines various terms and conditions pertaining to the employees in a bargaining unit. This agreement forms the foundation of the relationship between unionized employees and their employers. Some common examples of terms and conditions covered in a collective agreement may include:

• Employee wages and benefits;
• The obligations of the employer, the employees, and the union; and
• A dispute resolution process (often a grievance and arbitration process).

In administering the collective agreement, the employer must act reasonably, fairly, in good faith, and in a manner consistent with the collective agreement in its entirety.

What Is Collective Bargaining?

Collective bargaining refers to the process during which a union and an employer negotiate the terms and conditions of a collective agreement. Collective bargaining negotiation usually begins when the employer or union gives the other party a notice of desire to bargain, as outlined under section 16 of Ontario’s Labour Relations Act.

The ultimate goal of the collective bargaining process is to reach a mutually acceptable agreement between the union and the employer.

Navigating the Collective Bargaining Process

Section 59 provides that either party to a collective agreement may give written notice to the other party of its desire to bargain within 90 days of the expiration of the existing collective agreement, with a view to the renewal with or without modifications. A notice to bargain may take various forms and is often followed by a request for information. Employers should also be aware that a union may request information in excess of the required information, so requests should be carefully examined.

Section 17 of the Labour Relations Act requires the parties to meet within 15 days of the notice of desire to bargain unless otherwise agreed upon. If the union and employer cannot agree on the terms of a collective agreement, either party may ask the Minister of Labour to appoint a conciliation officer under section 18 of the Labour Standards Act. This officer will subsequently help the parties in their efforts to reach an agreement through “conciliation”.

The Parties’ Obligations During the Collective Bargaining Process

Section 17 of the Labour Relations Act also provides that the parties “shall bargain in good faith and make every reasonable effort to make a collective agreement.” This requires the parties to want to reach an agreement and act in a manner consistent with wanting to reach an agreement.

The Ontario Labour Relations Board requires parties to bargain in good faith and encourages “rational, informed discussion, thereby minimizing the potential for unnecessary industrial conflict”. In other words, the parties must ensure they do not engage in unfair labour practices or otherwise interfere with each other’s bargaining rights. To engage in meaningful discussions, each party should state its position and accompanying justification and listen to what the other side says about the matter. Once a party presents its proposals, it cannot add new and unrelated ones but may offer counter-proposals.

How to Prepare for Collective Bargaining

There are several steps an employer should take before beginning negotiations, as a collective agreement will set the workplace rules, and as such, adequate preparation is crucial. First, it is important to review the existing collective agreement carefully. A full read of the collective agreement will allow employers to identify problem areas and note provisions that require an update. Some questions employers should consider during a collective agreement review may be:

• Are there new or revised job titles?
• Have any legislative changes been made?
• Have any problems already been identified, perhaps through grievances?
• Are there prior proposals that should be revisited?
• Are there practices or policies that should be implemented or discontinued?

This agreement review also allows for a clean-up of the agreement overall, such as cross-referencing provision numbers and references and correcting typographical errors.

An employer may also conduct external research to determine industry standards and benchmarks on particular matters and review other collective agreements.

After an employer has thoroughly reviewed the collective agreement, it is vital to prepare and draft proposals and identify desired additions and requested deletions from the collective agreement. Employers must also decide on priorities for bargaining and a budget.

How to Approach the Collective Bargaining Table

During the collective bargaining process, it is crucial to ensure that employers focus on the underlying problem rather than the union’s specific proposals. Employers need to ask questions to clarify their understanding of the proposals. When an employer truly understands a problem area identified by the union, they are better suited to propose alternative solutions which will work for both parties.

Employers should be creative and forward-thinking with their proposals. However, they should strive to use plain language in their proposals and agreed-upon terms to be incorporated into the collective agreement to avoid confusion or ambiguity, which may result in unintended consequences or legal issues later on.

How Can a Labour Law Lawyer Help?

Once a final collective agreement has been agreed upon, it is critical to ensure it is thorough and adequately drafted, as a poorly drafted agreement can create significant operational and financial hardships for employers. By working with an experienced labour law lawyer, an employer can quickly identify potential liability issues and rest assured that their interests are preserved from the outset of the negotiation process. A lawyer can help strengthen an employer’s position through comprehensive planning and extensive preparation of bargaining proposals before the bargaining process. Beyond the collective bargaining process, a lawyer will also advocate on an employer’s behalf during dispute resolution processes, such as bad faith bargaining applications, conciliation hearings, and first contract arbitrations.

Contact Willis Business Law in Windsor-Essex for Trusted Advice on Collective Agreements and Representation in Collective Bargaining

Collective bargaining can be an overwhelming and expensive process for employers, so working with a trusted labour law lawyer is essential to protect your interests. At Willis Business Law in Windsor-Essex, our talented labour and employment lawyers draw upon their extensive experience representing employers at all stages of the collective bargaining process to ensure that the process runs smoothly. We help employers prepare for negotiations and work with them to develop comprehensive legal strategies to ensure their interests remain protected from negotiations to the administration of the final collective agreement. To learn how we can assist you in the collective bargaining process, contact us online or at 519-945-5470.