April 07, 2011

Any time management makes a decision in connection with the workplace that is not explicitly addressed in the collective agreement, the question will arise as to whether this action is within management’s prerogative. In the absence of express terms in the collective agreement, which types of actions must have the consent of employees or the union and which are within the discretion of management? Is there a general obligation on the employer to exercise management rights fairly and reasonably? Join Lancaster’s panel of experts who will discuss the latest caselaw on management rights, and will address these and the following issues:

  • Explicit vs. Implied Rights: What are the different schools of arbitral thought on the scope of management rights? How big a factor are management rights in arbitral decision-making? Does the characterization of a decision as relating to the operational aspects of the business versus the individual rights of employees impact on this question? Is it always in the interests of management to explicitly enumerate rights in the collective agreement? Is it always in the interests of the union to explicitly limit them?
  • Duty of Fairness, Good Faith, and Reasonableness: If a provision of the collective agreement confers discretion on the employer, must this discretion be exercised reasonably? What is the distinction between a duty of fairness and a duty of good faith? Once it has been established that management has acted in good faith, can the union object on the basis that the actions taken were simply for the company’s convenience or were unreasonable? If the collective agreement provides management with a discretion – for example, to grant education leave – can the employer then pass a blanket policy governing the exercise of that discretion?
  • Specific Issues: Can an employer unilaterally reorganize the workforce? Implement drug testing? Institute biometric time keeping? Require that employees obtain periodic police record checks? Engage in electronic surveillance? Insist on aptitude testing and medical exams for new jobs? Introduce an attendance management program? What limits are there, if any, on management’s ability to assign overtime hours? Eliminate a shift? Assign bargaining unit work to non-bargaining unit employees? Abolish a position where a vacancy occurs?
  • Impact of Collective Agreement Language: How do various provisions of the collective agreement such as recognition clauses, seniority clauses, job classifications, etc., circumscribe management’s exercise of discretion?
  • Employer Rules: What tests must be met where management issues rules?
  • Existing Working Conditions: What issues would be caught by a provision that management is to continue “existing working conditions” unless changed by mutual consent?

This audio conference has been approved by the following:

  • The Law Society of British Columbia for 1.5 Continuing Professional Development hours.
  • The Law Society of New Brunswick for 1.5 Continuing Professional Development hours.
  • The Law Society of Saskatchewan for 1.5 Continuing Professional Development hours.
  • This 1.5 hour program can be applied towards 9 of the 12 hours of annual Continuing Professional Development required by the Law Society of Upper Canada. Please note that these CPD hours are not accredited for the New Member Requirement.