Friday, June 30, 2017

Saskatchewan Labour Relations Board Clarifies the Effect of Voluntary Recognition by Greg

Saskatchewan's labour legislation grants little explicit statutory support to an employer's voluntary recognition of a union (with the exception of the construction sector). In turn, the Saskatchewan Labour Relations Board has treated voluntary recognition arrangements with caution, concluding that a union which has only been recognized voluntarily may not enforce statutory union security provisions, and cannot resist a competing certification in reliance on the open period in its collective agreement.

However, one recent decision of the Saskatchewan Labour Relations Board clarifies that the provisions of the Saskatchewan Employment Act ("SEA") governing collective agreements may apply to an agreement reached as the result of voluntary recognition.

In Canadian Union of Public Employees, Local 1486 v. The Students' Union of the University of Regina Student Inc., LRB File No. 177-16 (PDF) ("URSU"), the applicant Union has been voluntarily recognized by the Employer for more than four decades. The Employer then purported to unilaterally withdraw its recognition of the Union and changed some terms and conditions of employment. The Union brought an unfair labour practice application against the Employer.

In determining whether the existing collective agreement remained in effect, Vice-Chairperson Mitchell considered whether s. 6-39(1)(b) of the SEA (which provides for the continued operation of a collective agreement on an annual basis upon expiry) had effect where the collective agreement arose out of voluntary recognition rather than a certified collective bargaining relationship. He answered in the affirmative for the following reasons at para. 54-62:

- the SEA definition of a "collective agreement" is not ambiguous and does not refer to a certification order;
- protection for collective agreements negotiated through voluntary recognition assists in maintaining labour peace;
- the protection of collective agreements within Part VI of the SEA is compatible with other providions of the part which provide for rights notwithstanding the lack of a certification order;
- the level of support for the union was not in issue; and
- a failure to protect the collective bargaining relationship would result in an injustice between the parties.

In principle, Vice-Chairperson Mitchell's reasoning in URSU could apply to other circumstances in which a collective agreement is referenced absent any explicit or contextual requirement for an associated certification order.

Most notably, the SEA's provisions governing the resolution of collective agreement disputes (ss. 6-45 - 6-52) refer to collective agreements independent of any requirement that a union be certified. This suggests that the Part VI arbitration process should govern disputes arising under collective agreements reached through voluntary recognition.

Other provisions whose application might be affected by a similar analysis include (but are not limited to) section 6-18(3)(b) as to succesorship rights, section 6-19 as to jurisdictional transfers, section 6-26 as to the bargaining of a renewal agreement, section 6-41 as to the binding effect of a collective agreement, and section 6-62(1)(e) as to an employer's obligation to permit union representatives to negotiate during working hours to settle disputes and grievances.

Vice-Chairperson Mitchell did hold at para. 71 of URSU that the use of "bargaining unit" in section 6-62(1)(n) (establishing a statutory freeze in terms and conditions of employment following the expiry of a collective agreement) made it applicable only where a certification order was in place. Any provisions which specifically reference certification orders or associated concepts such as the Board-approved "bargaining unit" may thus remain inapplicable in a case of voluntary recognition.

However, URSU signals that even if Part VI of the SEA does not explicitly provide for a voluntary recognition scheme, it will be interpreted to extend some protections to parties to a voluntary collective bargaining relationship.

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