Employers Can Impose Contract Terms on Union Employees

A recent bargaining dispute involving B.C.’s unionized coastal forest companies highlighted the issue of whether an employer can ever unilaterally impose new contract terms. Because of that recent battle, more employers and union members are pondering this question.

The answer requires some close analysis of how collective agreements operate and of the impact of legal work stoppages.

For unionized employers whose operations fall within the provincial sphere, the B.C. Labour Relations Code governs the timing and impact of work stoppages. According to the Code, the union must not strike and the employer must not lockout during the term of a collective agreement.

The parties are obligated to engage in collective bargaining in good faith to reach a new agreement. However, negotiations sometimes break down and one side or the other invokes the ultimate bargaining tool – a strike or a lockout.

Every collective agreement is deemed by the Code to contain a term stating that there shall be no strikes or lockouts while the agreement continues to operate. The inference to be drawn from this is that a lawful work stoppage can only occur when the collective agreement has been terminated. In fact, it is usually the occurrence of the strike or lockout itself which serves to terminate the effect of the agreement.

Normally, once a strike or lockout has commenced, the employees do not return to work until a new agreement has been reached. In that context, there is no opportunity to impose new terms on the employees because the new, freely negotiated, collective agreement will govern.

The question of whether the employer can unilaterally impose new terms only arises when the employees return to work without a new collective agreement. This is when the Code allows employers to impose their own terms.

The Code states clearly that the employer is not allowed to alter any term or condition of employment until a strike or lockout has commenced. While the Code does not go the further step (to state that it is permissible to alter the terms once a work stoppage has occurred), that is the only logical inference to be drawn. And, B.C.’s Labour Relations Board has occasionally affirmed this principle.

In effect, the old collective agreement ceases to have any impact as soon as a legal work stoppage occurs. Having been terminated, the old agreement ceases to bind the employer, which is then free to impose its own terms.

The practical reality is that as soon as the employer attempts to impose new terms, most unions will simply commence (or recommence) a strike. Most often, the employees will simply stay on strike until a new collective agreement is reached.

If the employees do return to work under the imposed terms (sometimes this will occur simply as a result of economic pressure), chances are that the union will have lost the support of its members. If that’s the case, a decertification is likely not too far off.

It is a rare labour dispute in which the opportunity for the employer to impose new terms arises and an even rarer one when that opportunity lasts for more than a few hours. Although it is a realistic possibility it may not be one that has much practical utility.

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