The collective bargaining primer: Part 1 “What happens if bargaining goes past our contract expiry date?”

Apr 19, 2018 | Bargaining | 0 comments

This is the first of what we hope will be an occasional series on basic facts about collective bargaining under the Labour Relations Code (“The Code”).

The goal of this series is to inform our members about the conditions under which Collective Bargaining is taking place and the various rules and expectations that impact how it is carried out. This series is in addition to our updates and notices.

“What happens if bargaining goes past June 30, 2018?”

A question we have heard over and over again at our “Meet and Greet” sessions and other presentations is “What happens if bargaining goes past June 30th?”

Difference between the old and new systems

Under our old system of bargaining, this really wasn’t an issue, since our terms and conditions did not have an expiry date, and we were required to submit any impasse in economic benefits negotiations to an arbitrator for Final Offer Selection (FOS). Our schedule for negotiations under this old system assumed we would get things done before the contract expired. While we occasionally missed that deadline, we were never more than a month or two late. Pay differences were handled retroactively.

Under the new system, however, the end of the contract is much more significant.

  1. Our terms and conditions (e.g. including such core values as academic freedom and tenure) now have an expiry date unless they are renewed (previously only economic benefits had an end date);
  2. We cannot reach an impasse until after the contract has expired (i.e. the impasse resolution mechanisms like formal mediation, lockout, or strike can be invoked only after June 30th).
  3. Because there is no automatic arbitration and because Handbook terms are not automatically renewed, we must negotiate until we reach agreement. Negotiations are therefore highly likely to go past the end of the contract much more commonly in the future than they did in the past.
  4. The bulk of our currently planned negotiating sessions are scheduled for July after the contract ends.

So what does happen after the contract expires?

The short answer is that things continue exactly as they are until one of three things happens:

  1. We reach an agreement;
  2. Job action (Lockout or strike) interrupts negotiations;
  3. Negotiations continue for two years beyond the end of the contract.

The first of these is, of course, the most likely scenario–though we can’t say now how long it might take.

As we’ve said repeatedly in our sessions, we believe that the second option is relatively unlikely. In the unlikely event that job action occurs, however, ULFA has built up sufficient reserves to support its membership through an average length job action–and we recommend that members build up a small amount of savings (for somebody with an average salary of $115k/year, probably between $1200 and $3600 should be sufficient).

The third is extremely unlikely and there is also some uncertainty as to whether this rule from the Code applies to the Post Secondary Sector during the five year “Statutory Freeze” that established the Faculty Associations as Unions.

What does “continue exactly as they are” mean?

When we say things “continue exactly as they are,” we mean that our contract stays in force during negotiations until settlement, job action, or two years have passed.

It means that all language that does not have an explicit end date in the contract continues in force:

  1. Tenure remains in effect;
  2. You continue to have academic freedom and enjoy the protections of our discipline, grievance, and appeal processes;
  3. You keep your health benefits, pension plans, tuition benefits, academic freedom, eligibility for promotion, etc.
  4. If you are eligible for tenure, promotion, a continuing contract, or study leave, you can still access those processes;
  5. Your professional supplement will be paid “on or around July 1” as required by Schedule B.05.1;
  6. Those who are eligible for merit or career progress increments will receive them (see 32.04 and 32.05.2–Merit and Career progress are paid out on June 30th and so would have to be paid out anyway);
  7. You will receive a cost of living adjustment (COLA) on July 1 equal to the average of the February to February Canadian and Alberta CPI (Schedule A.02.1. For this coming year, we know that COLA will be worth 2.2%).

In other words, unless we settle, are locked out or go on strike, or (maybe) find ourselves still without a settlement after two years, almost everything in our contract continues as is: your benefits stay in place, you have access to the same freedoms and rights, and your pay will continue to rise through COLA and, if you are eligible, career progress, and merit.

But if the contract is expired, can’t the University just refuse to honour its terms?

The continuation of the contract is required under section 130(1) of the Labour Relations Code and is known as “Bridging” or a “Statutory Freeze”:

Bridging of collective agreements
130(1) When notice to commence collective bargaining has been served under this Act, a collective agreement that applies to the parties at the time of service of the notice is deemed to continue to apply to the parties, notwithstanding any termination date in the
agreement, until

(a) a new collective agreement is concluded,
(b) the right of the bargaining agent to represent the employees is terminated, or
(c) a strike or lockout commences under Division 13.

We triggered this when we issued our various notices to bargain earlier this Spring (in fact, this is why we issued two notices to bargain, even as we were waiting for the Labour Board to rule on our contention that there was only one collective agreement: by issuing the notices to bargain, we ensured that the bridging provisions would come into effect no matter which way the Board ruled; in the end, of course, they ruled in our favour).

Just as importantly, it is both a grievance and an unfair labour practice (which ULFA can appeal to the Labour Relations Board) if the employer attempts to stop any of these contractual rights. This means that the University cannot refuse to honour any of the terms of our current collective agreement while negotiations are ongoing.

So why would we settle? If we are receiving a pay increase when the contract expires, shouldn’t we try to stall negotiations for as long as possible?

Given this freeze, you might think it would be in our interest to try and stall negotiations as long as possible. Some unions in the Province (e.g. the Nurses, Teachers, and the U of C), after all, have settled for 0% pay increases for two years. If we were faced with the option of settling a contract and receiving 0% or not settling and receiving an automatic Cost of Living Adjustment of 2.2% (and we have received no indication that we are), a smart strategy might seem to be to avoid settling.

There are several reasons, however, why we want to make every reasonable effort to enter into a new collective agreement:

  1. We are legally obliged to. Under Section 60(1) of the Code, both the employer and the Union are required after a notice to bargain has been served to “bargain collectively in good faith” and “make every reasonable effort to enter into a collective agreement.” Deliberately stalling negotiations in order to benefit from the bridging provisions could be inconsistent with this duty;
  2. There is no reason to believe that our final settlement must mirror those of the unions that settled before the provincial budget was announced.  The Nurses and the Teachers negotiate on a province-wide basis, and the agreement the U of C just settled is from last year (their contract expired in 2017). Moreover, while the government has been clear that they expect the universities to be careful stewards of their budgets, they have also been clear
    1. That there is no mandate requiring them to reach a specific settlement with the Faculty Associations;
    2. That they have provided the universities stable and consistent funding (2% plus backfilling the tuition freeze) consistent with previous years, and expect to see them use this funding in a similar fashion;
    3. That they are critical of policies like the 4% across the board cuts instituted at the U of A.
  3. Pay increases awarded during the bridging period may be subject to retroactive deduction, depending on the nature of our final settlement . In other words, the final settlement may require members to pay back money awarded during the bridging period if the final settlement is less or different from the awards made after the contract expiry (this provision applies to COLA only: career progress and merit awards fall are actually awarded this year before the current contract expires, rather than under the bridging provisions). It is possible to mitigate the effect of this, through mechanisms like a compensatory signing bonus; but on the whole, it is better to try and avoid the potential problem.
  4. Prolonged negotiations can lead to labour unrest, uncertainty, and potentially drops in student numbers and poorer working conditions both during and after negotiations.

In the end, we are better off with a contract than without one. The bridging provisions, however, provide some continuity while we work towards negotiating our new agreement.

Should you have any questions about this matter, or any other related to our ongoing collective bargaining, don’t hesitate to contact the negotiating team Dr. Dan O’Donnell (daniel.odonnell@uleth.ca) or Dr. Paul Hayes (p.hayes@uleth.ca) .