Chapter 4 - Certified Associations PDF

lOMoARcPSD|2779689 Unions Mana 479 Chapter 4 - Certified Associations Powers Exclusive Representation The certified association has the exclusive right to collectively negotiate working conditions on the employees’ behalf. (monopoly; Wagner model) § The employer can no longer directly negotiate w/...

lOMoARcPSD|2779689 Unions Mana 479 Chapter 4 - Certified Associations Powers Exclusive Representation The certified association has the exclusive right to collectively negotiate working conditions on the employees’ behalf. (monopoly; Wagner model) § The employer can no longer directly negotiate w/ individual employees regarding work conditions. Collecting Union Dues The employer is obligated to collect dues established by the union from employees on behalf of the association. § Failing to collect union dues can result in fines of $100 - $500 (first offence) and $1,000 - $5,000 (subsequent offences) § Does not require a clause in the collective bargaining agreement. Obligations A certified association must act in good faith and represent all employees in the bargaining unit, regardless of whether they’re members of the association. Obligation of Representation The exclusivity of representation granted to the association comes with the obligation to represent fairly, competently, and w/ integrity. At all stages on the process, the association cannot: § Abandon or refuse to file a grievance on behalf of employees w/o justification. § Discriminate or make unjustifiable distinctions in how it treats or represents employees. § Blindly follow the employer’s decision. § Be grossly incompetent w/ errors. (it would be liable for damages) Lack of personnel/resources is not a justification for not representing an employee. ↳ Obligation to File a Grievance An employee does not have an absolute right to have a grievance filed. § Union has discretion to file or not file the grievance. § Discretion must be exercised honestly, objectively, and in good faith. § Discretion must not be exercised arbitrarily, abusively, or discriminatorily. § Union must assess the grievance, its importance, and the consequences for the employee. § Assessment must not be superficial, summary, or negligent. ↳ Union can refuse to file if it makes a fair assessment and concludes that the grievance is unwarranted. Failure to File a Grievance Recourse against a union for failing to represent an employee must be brought before the alt within 6 months of the union’s offence. § Failing to file the grievance on time is considered a good faith error. § If the offence is deemed not in good faith, the union can be ordered to pay damages. Failure to represent an employee in cases of dismissal or other sanctions/disciplinary measures allows the employee to request that the alt appoint an arbitrator to hear the grievance. § Union can be ordered to pay the costs of an attorney of the employee’s choice. § The alt can order arbitration despite the deadline for the grievance having expired. 13 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 Effects The collective bargaining agreement (CBA) belongs to the employees, not the union. Art. 61 In the event of a newly appointed union, the rights and obligations under the existing CBA are transferred to the newly certified union. The new union can declare the previous CBA null and void by sending a notice to the employer. § Except for a CBA of ≦ 3 years in the forestry industry. § A union will usually wait for the current CBA to expire to negotiate a new one. § Usually only done w/ long-term CBAs (> 3 years) Art. 45 All rights and obligations under a CBA are transferred to any new employer in the event of a sale, merger, acquisition, division, or changes in the legal structure of the business. § Collective rights of the association under QLC and CBA are transferred. § Individual rights of employees under QLC and CBA are transferred. § The right to file grievances under QLC and CBA are transferred. Applies to: § Public, private, and municipal corporations. § Bankruptcy or a judicial sale. § Whole or partial sale or concession of a business. § Transfers which include most of the factors of continuity. § Subcontracting of a part of the undertaking. If there is a transfer of rights/obligation, the sale/concession will not affect the CBA or the union. Determining whether there is a transfer depends on whether there is continuity of the undertaking: § Acquiring the clientele of the old employer. § Acquiring the equipment. Place of business, goods, and inventory. § Acquiring the HR. § Maintaining the duties of the employees and pursuing the same objectives as the old employer. Concession - The operations/exploitations of the business are transferred w/o transferring ownership. Raiding Periods Art. 22 Petition Deadlines A new association can present a petition to represent a group of employees already represented by a union if: Situation Condition Union has been unable to negotiate a CBA within 12 months of its initial certification. § A dispute has not been submitted for arbitration. § There is no ongoing strike/lockout. Union was unable to renew its CBA within 9 months of its expiration. § A dispute has not been submitted for arbitration. § There is no ongoing strike/lockout. 14 Downloaded by Savannah Amber ([email protected]) lOMoARcPSD|2779689 Unions Mana 479 A union is concluding a CBA of ≦ 3 years § Raiding period is 90 - 60 days before CBA expiration. § An extension of the CBA does not stop the raiding period (it’s public order). § Raiding period is 270 - 240 days before CBA expiration in the public/para-public sectors. A union is concluding a CBA of > 3 years § Raiding period is 180 - 150 days before CBA expiration. § Raiding period window reopens every 2 years as of the 6th anniversary of the CBA. ↳ Does not apply if there remains < 12 months in the CBA at the date of anniversary. Multiple Petitions Multiple petitions can be presented by different associations during the same raiding period. § The first to file rule does not apply during raiding periods. § Petitions will be treated concurrently as if they were filed on the same day, and will be examined based on which is representative of the BU. § Alt must make all petitions available to the public. Petitions made based on different raiding periods will be examined successively, and must wait until a petition for the current raiding period has been determined. If a secret ballot is conducted during the raiding period: § The association w/ >50% representation will be certified. § If none have >50%, a new vote will be conducted w/ the two associations w/ the highest %. § If neither get >50%, the association w/ the highest % will be certified. ↳ (the two associations together must make up >50%) Art. 72 A CBA will only take effect when 2 duplicate originals (2 true copies) of the agreement have been signed and filed w/ the Minister. § Once filed, the effect will be retroactive to the date provided in the agreement. § If the CBA is not filed within 60 days of signature, another raiding period will open up on the 61st day and will remain open indefinitely until the CBA is filed, or until another union takes over. § If the 60th day falls on a Saturday, Sunday, or statutory holiday, the deadline will extend to the following juridical day. Revocation of Certification Art. 41 During a raiding period, the Tribunal may cancel a union’s certification if: § The association ceases to exist § The association no longer comprises the absolute majority of the employees of the bargaining unit for which it was certified. ↳ This can be requested by any interested person including employees, an employer, another association, or the association itself. 15 Downloaded by Savannah Amber ([email protected])