When a trade union and an employer bargain a collective agreement, they have a duty under the Labour Relations Code (the Code) to bargain in good faith. This means they must make every reasonable effort to agree to a collective agreement.
Generally, bargaining in good faith involves the union and the employer meeting with each other to exchange proposals for a collective agreement. They must make a sincere attempt to reach an agreement.
Disagreeing with the other side's proposals or taking a very firm stand in support of your own positions is not bargaining in bad faith. However, adopting a deliberate strategy to prevent reaching agreement could be a breach of the duty to bargain good faith.
Bargaining for a first collective agreement
When a union is newly certified, the union and employer must not fail or refuse to meet to bargain their first collective agreement. To start collective bargaining:
- Either the union or the employer can give the other notice to start collective bargaining
- The parties must start bargaining in good faith within 10 days of the notice
Learn about changes to terms and conditions of employment while bargaining a first collective agreement.
Bargaining for the renewal of a collective agreement
If the parties already have an existing collective agreement:
- Either the union or the employer can give notice to the other to start collective bargaining within the four months before the expiry of the existing collective agreement
- If the union or the employer don't give notice, it is deemed to have been given 90 days before the expiry date of the existing agreement
- The parties must start bargaining in good faith within 10 days of notice or deemed notice
How does the Board decide if a party has failed to bargain in good faith?
In deciding whether the union or employer has failed to bargain in good faith, the Board will assess the party's actions and intentions.
The Board will look at the party's actions to decide whether they unreasonably hindered the process of reaching an agreement or has the predictable effect of destroying the bargaining process.
Some examples of a party's action the Board may consider are:
- whether a party is insisting that the other meet its demand over how to meet, where to meet, or other bargaining formats or expand or restrict the scope of a bargaining unit of employees,
- whether a party is refusing to provide certain information relevant to issues being discussed at the bargaining table or refusing to bargain until that information is provided,
- whether a party is cancelling scheduled bargaining sessions at the last minute or with no notice without a reason,
- whether a party is failing to tell the union about business decisions that could impact negotiations, such as a decision to move or close a location,
- whether a party is communicating in a way that is circumventing the bargaining agent, or
- whether there has been other conduct the Board finds had the effect of unreasonably hindering the bargaining process.
The Board may also look at a party's intentions and consider whether:
- a party is only going through the motions of bargaining, but doesn't want to conclude a collective agreement, or
- a party's motivations are to undermine the other party or avoid concluding a collective agreement.
The Board assesses the parties' intentions and actions as a whole in deciding if one of the parties is failing to make every reasonable effort to conclude a collective agreement.
Although every case is unique, certain actions or behaviors are usually not, on their own, a breach of the duty to bargain in good faith. For example, a party may:
- take a hard bargaining approach--where a party takes the position that it is unwilling to compromise on certain issues, but is still genuinely seeking an agreement
- withdraw or reduce earlier offers
- propose a settlement offer during a strike or lockout which is less than earlier offers
How to make an application alleging a breach of the duty to bargain in good faith?
To file an application:
- Complete an application by written submission (i.e. letter)
- Make sure the application has the information required in the Rules
- Make sure the application identifies what remedy you are asking for, if successful
- Submit the application by email, mail, or courier
- Serve the other party as required by the Rules
- Arrange to pay the $100 filing fee
Once the Board receives your application, it will be assigned to a panel who may request submissions from the other parties. The panel may make a decision based on the written submissions. It may also schedule an oral hearing but is not required to do so. Therefore, you should provide all the information and supporting documents to make your case at the time you file your application.
The Board may also appoint a Settlement Officer to attempt to resolve the dispute with the parties informally before it is assigned to a Vice-Chair to make a decision.
Leading decisions provide useful information on how the Labour Relations Board applies the Labour Relations Code (the Code) and information on what is or is not covered by the Code.