• After the Collective Agreement Expires: Unilateral Changes in Conditions of Employment
  • July 3, 2014 | Authors: Michael Hamata; Larry Page
  • Law Firm: Davis LLP - Vancouver Office
  • On June 4, 2014, in British Columbia Public School Employers' Association -and- British Columbia Teachers' Federation, BCLRB No. B104/2014, the British Columbia Labour Relations Board issued an interesting decision arising from the ongoing dispute between the British Columbia Public School Employers' Association (the “BCPSEA” - the bargaining agent representing all public boards of education in BC) and the British Columbia Teachers' Federation (the “BCTF” - the union that represents BC teachers). The decision is a helpful reminder of the powers of an employer to unilaterally change terms and conditions of employment when no collective agreement is in force.

    On April 17, 2014, (BCLRB No. B74/2014), the parties agreed on an essential services framework under which the teachers could withdraw their services. Withdrawal of non-core educational activities, including before and after school supervision, could be mitigated by management and excluded staff performing those activities. Notice periods were also set for the teachers’ total withdrawal of services for one or more days.

    The teachers did withdraw some non-teaching services and implemented rotating strikes though different school districts in accordance with the April 17 agreement. In response, the BCPSEA engaged in a partial lockout, not allowing teachers to attend school more than 45 minutes before or after school hours. The BCPSEA also reduced teacher salaries by 10%, which it said was meant to compensate for the partial lockout. The BCTF claimed that the salary reduction wasn’t contemplated by the April 17 agreement, and wasn’t otherwise allowed for reasons relating to an essential services designation. The BCPSEA argued that it was entitled to reduce salaries because there was no collective agreement in effect, and that the reduction in salary did not offend the April 17 agreement.

    The Labour Relations Board agreed with the BCPSEA, and relied on the Supreme Court of Canada decision in Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd, [1989] 2 S.C.R. 983, which decided that when there is no collective agreement in place, there is no legal reason why an employer cannot unilaterally alter the terms of employment, including wages paid to employees.

    In recent years, unilateral alteration by the employer of the terms and conditions of employment has been used less frequently in collective bargaining, but, in certain circumstances, it remains an effective tactic to exert pressure on a union as part of the collective bargaining process. The Labour Relations Board’s decision provides a useful reminder to employers that there is no reason to adhere to the terms of a collective agreement that is no longer in force. A reduction in salary or benefits, or other cost saving changes, may provide a preferable alternative to a total lockout, particularly if the employer believes that the union will not strike because of the changes. Even if the union decides to strike over a partial lockout, that is usually better than a lockout, for public relations reasons, and it can have the effect of bringing the negotiation of a new collective agreement to a quicker conclusion.

    In the case of the BCPSEA and the BCTF dispute, the union declared a full-scale strike on June 17, 2014 and it continues as of this writing.