Week 10 Industrial Relations Post-PDF

INDUSTRIAL RELATIONS Week 10 Administration of the Collective Agreement Professor Qian Zhang ADM3334 Announcements Group Assignment 2 Due today Peer Evaluation Form – Mandator y! Mock Arbitration in 2 Weeks Final Exam - Survey Final Exam Time: Dec 13 7-9 pm location: DMS1140 Learn...

INDUSTRIAL RELATIONS Week 10 Administration of the Collective Agreement Professor Qian Zhang ADM3334 Announcements Group Assignment 2 Due today Peer Evaluation Form – Mandator y! Mock Arbitration in 2 Weeks Final Exam - Survey Final Exam Time: Dec 13 7-9 pm location: DMS1140 Learning Objectives Id e n t i f y p o s s i b l e l i m i t a t i o n s o n t h e e xe r c i s e o f m a n a g e m e n t r i g h t s E x p l a i n h o w s e n i o r i t y m i g h t a f fe c t t h e p l a c e m e n t , l a yo f f a n d r e c a l l o f e m p l o ye e s D i s c u s s t h e i m p l i c a t i o n s o f h u m a n r i g h t s l e g i s l a t i o n fo r t h e a d m i n i s t ra t i o n o f t h e c o l l e c t i ve a g r e e m e n t E x p l a i n t h e s i g n i f i c a n c e a n d f u n c t i o n s o f t h e g r i e va n c e a n d a r b i t ra t i o n p r o c e s s O u t l i n e t h e fo r m a l a n d i n fo r m a l s t e p s o f t h e g r i e va n c e p r o c e d u r e O u t l i n e t h e p r o c e d u ra l a n d l e g a l a s p e c t s o f t h e a r b i t ra t i o n p r o c e s s D e s c r i b e t h e d i s c i p l i n a r y m e a s u r e s t h a t a r e a va i l a b l e t o t h e e m p l o ye r Ap p l y d i s c i p l i n e i n c o m p l i a n c e w i t h t h e c o l l e c t i ve a g r e e m e n t a n d t h e l a w Management Rights Any action taken by the employer relying on management rights is subject to the following limitations: (1) the measures must not contravene other provisions of the collective agreement; (2) the action taken must be legal; (3) there must not have been previous statements or conduct that creates an estoppel; and (4) any rules established must meet the requirements set out in the case KVP Co. Ltd. Principle of Estoppel If the union relies on an employer ʼs past practice to their detriment in negotiations, then the employer is prohibited (i.e., “estopped”) from changing the practice until the next set of negotiations. In th e KVP C o. Lt d. c a se, th e a rb i tra ti o n b o a rd ʼs d ec i si o n p rovi d ed th a t: A ru l e u n i l a tera l l y i n tro d u c ed by th e c o mp a ny, a n d n o t su b seq u en tl y a g reed to by th e u n i o n , mu st sa ti sfy th e fo l l o wi n g req u i s i tes : 1. It mu s t n o t b e i n c o n s i s ten t wi th th e c o l l ec ti ve a g reemen t. 2. It mu s t n o t b e u n rea s o n a b l e. 3. It mu s t b e c l ea r a n d u n eq u i vo c a l. 4. It mu s t b e b ro u g h t to th e a tten ti o n o f th e emp l oyee a f fec ted b efo re th e c o mp a ny c a n a c t o n i t. 5. Th e emp l oyee c o n c ern ed mu s t h ave b een n o ti f i ed th a t a b rea c h o f su c h ru l e c o u l d resu l t i n h i s d i sc h a rg e i f th e ru l e i s u s ed a s a fo u n d a ti o n fo r d i s c h a rg e. 6. S u c h ru l e sh o u l d h ave b een c o n si sten tl y en fo rc ed by th e c o mp a ny f ro m th e ti me i t wa s i n tro d u c ed. Seniority objective factor: the member ʼs length of ser vice with the employer Employment standards legislation typically requires seniority to continue to accumulate during leaves such as pregnancy and parental leave. Grievances have been filed in cases where employees have lost jobs because their seniority did not accumulate during absences caused by illness or accident, and arbitrators have found this discriminator y. Job Posting and Selection Process Hire part-time employees to fill an opening instead of posting for a full-time job Management may determine the job specifications for a position; however, those specifications must be reasonable requirements for the job. The job posting procedure must be applied in a reasonable manner without any discrimination. selection criteria in the job posting vs. criteria used in making selection decision Assessing Skills and Ability Employment tests: reliable, valid, and fairly conducted The main problems found with the inter view process were: (1) using inter view questions that failed to measure the knowledge, skills and abilities required for the job; and (2) giving the inter view results too much emphasis and failing to consider factors such as prior per formance appraisals and work histor y. Grievance and Arbitration Process Labour legislation requires a collective agreement to have language outlining grievance and arbitration processes. Significance of the Grievance and Arbitration Process Significance of Grievance and Arbitration Obey now, grieve later rule: unless the disputed management directive is illegal or would entail a safety risk, the employee must follow it, even if it appears to violate the collective agreement, and pursue a grievance later. Significance of the Grievance and Arbitration Process Grievance Procedures Grievance rate: the number of grievances filed divided by the number of employees in the bargaining unit. poor labour relations climate Ownership of the grievance: the issue of who decides whether a grievance is filed, settled, withdrawn or referred to arbitration the Union Arbitration Rights (grievance) arbitration vs. Interest arbitration Interest arbitration is used primarily in areas of the public sector such as police and f ire ser vices, in which strikes are not allowed. selection of an arbitrator: management and the union à the Labour Relations Board Usually a few experienced arbitrators are handling a dispropor tionately large number of cases in each province. The Arbitration Hearing unresolved grievances commonly referred to as a hearing. At the hearing, these representatives will be allowed to make an opening statement, present evidence through witnesses and documents, cross-examine the other sideʼs witnesses and make a final argument. Burden of proof: the party filing the grievance (mostly the union), except for discipline and discharge cases à employers bear the burden of proof Cost of Arbitration Costs are shared equally by the employer and the union Arbitratorsʼ fees range from $2,000 to $3,500 per day (plus expenses) for the hearing and writing up the award. Costs are paid by union (from dues), not by the individual who filed the grievance Power of the Arbitrator - An arbitrator has the power to: Remove disciplinar y action if no grounds for discipline. Substitute lesser discipline if arbitrator thinks appropriate. - An arbitrator cannot order any punitive damages. But this principle over turned in recent cour t case - Order other remedies, including compensation, correcting ERʼs records, etc. - Arbitration award can be enforced as an ordinary court order. “Justice Delayed” time to award is 6 to 9 months Delay mainly at the pre-hearing stage. Arbitrator concentration: A relatively small number of popular arbitrators in Ontario handle a large percentage of arbitrations. Reinstatement or backpay award can be crucial for both the employee and the employer.  Example: Suppose a delay of 6 months in making a decision, the employeeʼs salar y is $50,000 per year, and the EE has not found Importance another job. Assume the employee was replaced af ter termination, but the arbitrator finds the termination was not of Delays warranted. Impact? Alternatives to Conventional Arbitration EXPEDITED ARBITRATION GRIEVANCE MEDIATION  Expedited arbitration enables faster resolution of disputes referred to arbitration by providing for shorter time limits in the process Option provided by statute in OLRA since 1979. - Now used in about half of arbitration cases Government assigns sole arbitrator from The List Hearing must commence within 21 days of referral Reduces delay and expenses. Evidence in form of written statements or limiting the number of witnesses. Grievance Mediation a confidential process in which a mediator helps the parties negotiate a settlement Appointment of settlement officer (not a lawyer) who attempts to achieve a mutually agreeable mediated settlement prior to arbitration. Successful resolution: over 80% of cases Mediation is on a “without prejudice” basis, i.e. concessions made in mediation cannot be used against the party in any subsequent arbitration. Advantages: faster resolution, cost savings, less adversarial and leads to better labour-management relations. Discipline and Discharge In discipline and discharge cases the onus (burden) of proof is on the Employer. In other cases, the onus is one the party bringing the complaint – typically the union Employerʼs power to discharge /discipline is limited to ʻjust causeʼ. Discharge is punitive but discipline is corrective Discipline traditional: warnings, suspensions, and discharge uncommon: demotion, wage cuts restrictions: 1. Monetar y penalties or f ines and loss of seniority are not permissible (unless the collective agreement provides for them) 2. Employers cannot impose discipline twice on the same incident of misconduct. Progressive Discipline increasingly more serious disciplinar y sanctions for subsequent offences: well-entrenched in unionized workplaces If an employee engaged in misconduct, the employer needs to bring it to the attention of the employee If misconduct is repeated, employer needs to deal with it more severely Can result in dismissal if major misconduct Culminating incident: a fur ther occurrence of employee misconduct that becomes the cause for dismissal when considering the employeeʼs record. Grounds for Discipline Next Week Mock Arbitration Activity!