'The general provision about the right to manage the workplace is going to be broadly interpreted'
An Ontario employer’s new policy requiring employees to record their attendance during breaks and lunch periods is reasonable exercise of management rights, an arbitrator has ruled.
A key factor allowing the employer to change when employees must record their time and attendance was a management rights clause and the lack of any specific language in the collective agreement prohibiting such a change, says Sharaf Sultan, principal of Sultan Lawyers in Toronto.
“When there’s an overarching provision stating that the employer has the right to manage the workplace, for it to be overridden there needs to be clear and specific language,” says Sultan. “Otherwise, the general provision about the right to manage the workplace is going to be broadly interpreted.”
Dynacast is a company that operates a factory in Peterborough, Ont., for die casting. Under its collective agreement, employees were allowed two 10-minute coffee breaks per day, with the company reserving the right to regulate break times. The collective agreement was silent on lunch breaks, but employees received a 30-minute lunch break each day.
The collective agreement stated that employees had to record their attendance at the start and the end of their shift on electronic data recorders for payroll purposes. They also had to punch in and out when they left company property for other than company-approved business.
Past practice of not recording breaks
The provision on recording hours of work included a requirement to record attendance at the start of the lunch break for payroll purposes, but it also stated that no recording of designated lunch breaks was necessary, although the company could withdraw this exception “if not respected by the employees.” Any requirement to record attendance for the lunch period was removed from the collective agreement in 2000.
In 2006, the parties added a note to the recording attendance provision stating that “over the lifetime of this collective agreement other time recording methods may be piloted and introduced.”
In January 2024, Dynacast advised employees in a bulletin that it was installing new time clocks and employees were required to use them starting Feb. 1. There was also a change for clocking in, as they were now required to clock in at the start and end of their coffee breaks and lunch break as well. The company explained that this was because some employes weren’t respecting break times and supervisors couldn’t be everywhere to ensure people were taking their proper breaks. This change hadn’t been raised during the previous collective bargaining session.
The union filed a grievance, alleging that the new policy on recording attendance requirements was contrary to the collective agreement, as the agreement didn’t allow for recording of attendance for coffee and lunch breaks. It wasn’t the intention of the parties to include breaks in the recording requirement or else it would have been included, the union said, adding that the new policy was inconsistent with the long-standing practice of not requiring such recordings for breaks.
The union also argued that the note in the provision advising that other time recording methods could be introduced only applied to new methods to record their time, not when employees would be required to record their time.
Management rights with employee monitoring
Dynacast countered that the new policy fell within its management rights to monitor employee attendance and regulate break times, as provided for in the collective agreement’s management provision. It maintained that the new policy wasn’t inconsistent with the collective agreement, as the time recording provision applied on its face for payroll purposes, and it was a reasonable measure to address performance management and discipline.
The arbitrator noted the principles of collective agreement interpretation, which include that language must be given its plain and ordinary meaning and agreements must be read as a whole in order to determine the intention of the parties.
The arbitrator also agreed with Dynacast that employers have the right to manage the workplace in a reasonable manner as long as they don’t contravene the collective agreement.
However, arbitrator agreed with the union that the note allowing for new methods of time recording to be introduced didn’t include when time is to be recorded, or else it would have used language to that effect.
The arbitrator determined that the collective agreement provision governed time recording for payroll purposes but it didn’t preclude Dynacast from requiring additional recordings for non-payroll purposes, such as performance management. The arbitrator noted that the paragraph expressly providing for recording of attendance at the start and end of the shift was for payroll purposes, while the paragraph requiring recording for leaving the premises didn’t refer to payroll purposes. As a result, the provision as a whole wasn’t intended as “an exhaustive list of when employees can be required to record their attendance for non-payroll purposes,” said the arbitrator.
Plain language
The union would have had to specifically negotiate language into the collective agreement to prohibit attendance recording for reasons other than payroll, says Sultan.
“The collective agreement would need to have stated that the employer is not permitted to record time for the purpose of workplace management,” he says. “Management has a right to manage the workplace - if an arbitrator believes that what the employer is trying to do is reasonably connected to management of the workplace and it’s not restricted explicitly in the collective agreement, then the general language about management's rights will be broadly interpreted.”
“If you want a restriction on management rights, it's got to be clear so there's not going to be a lot of effort to read in things that aren’t included, particularly when you have a management rights clause,” adds Sultan.
In addition, the new policy aligned with the company’s rights under the provision to regulate break times, the arbitrator said.
The arbitrator also found that the union hadn’t demonstrated a clear and specific representation from the company to maintain past practice. Silence at the bargaining table alone doesn’t establish a binding representation, the arbitrator said in dismissing the grievance.
“If the union at a later date wanted to bargain it out, they could do so at the appropriate time,” says Sultan. “It's not to say that [the new policy] couldn't be negated, but it needed to be negated through the normal bargaining process - there was a clause already that addressed [management rights] and the employer has the right to [introduce the policy] within that because it's rationally connected to the workplace.”
Right to implement policies for monitoring
The decision reinforces that, from an employer’s perspective, they have the right to implement workplace policies under a collective agreement, provided they don’t explicitly contravene its terms, according to Sultan.
“[Unionized employers] shouldn’t be too fearful that, just because there are restrictions within a collective agreement, a lot of management actions won’t be read into it,” he says. “If an employer feels that a proposed workplace procedure is going to fit within the collective agreement, then it's probably worth trying, and if you get pushback, you can discuss it with the union.”
