In its first bargaining “primer,” the University of Lethbridge Faculty Association (ULFA) discussed the answer to a common question we have received from our membership: what happens under the Labour Relations Code if the collective agreement expires before we have finished our negotiations?
The short answer is that under the “bridging” provisions of Section 130(1) of the Code, all articles of the collective agreement that were in effect when notice to bargain was given remain in effect until (1) negotiations are concluded; (2) negotiations are interrupted by job action; or (3) two years have passed without ratification of a new contract.
This means, for example, that tenure, academic freedom, and all other provisions of the Handbook remain in effect even after the expiry date of the Handbook until a new contract is ratified, there is a strike or a lockout, or no agreement has been reached after two years of negotiations.
In our blog post, we indicated that the “bridging” provisions also apply to the economic provisions of Schedules A and B: professional supplement, career progress and merit, for example, as well as our annual Cost of Living Adjustment (COLA) as agreed to under Schedule A.02.1. Our understanding is that this means that these adjustments are made on an interim basis on July 1, despite the expiry of the contract.
In every case, these contractual provisions can be modified by the terms of any subsequent settlement, meaning, for example, that the parties can agree to changes in career structure or ranks, or decide on a different COLA formula. Whether these changes are applied from the date of ratification, retroactively to the expiry date of the previous contract, or to some other date the parties agree upon is also part of the negotiations.
These rules under the Labour Code are quite different from what happened in practice under the Post-Secondary Learning Act (PSLA): under the PSLA, Terms and Conditions remained in effect until the parties agreed to modify them. Economic benefits were subject to mandatory arbitration in the event no agreement could be reached by the end of the contract. In the event negotiations did continue past the expiry date, the employer’s practice was to observe the previous terms and conditions, but freeze salary adjustments until either an agreement was reached, or an arbitrator made a ruling. The new terms were then instituted retroactively to the expiry date of the contract. Under the PSLA, in contrast to the Code, Faculty Associations had few tools available to them to challenge employer actions in this area.
In the first few negotiating sessions, the Board of Governors’ negotiating team indicated that they disagreed with ULFA’s interpretation of the application of the bridging provisions of Section 130(1) of the Code to our Handbook, particularly with regard to its application to Economic Benefits under Schedule A (this disagreement concerns the application to pay increases such as COLA, career progress, and merit; it does not concern base salary, which both sides agree will continue past the end of the contract until there is a new agreement or job action). Since then, there also has been an informal meeting of non-bargaining representatives from the two sides on the same question, which currently remains unresolved. If no resolution proves possible between the sides, it becomes a question for mediation or the Labour Board.
We will provide updates as this issue develops further.