History, frequency, maturity of relationship all figure in estoppel
The term past practice refers to a long-standing and consistent procedure or interpretation on the part of either an employer or a union that has resulted in the other party relying on that procedure or understanding in their dealings. Legally, it creates an estoppel: when a party has declared through its actions (or inactions) that it intends to interpret its rights in a certain way, and others have relied on these representations, it cannot then revert to a stricter interpretation of what these rights are.
What is the source of the right being contested?
Past practice comes into play in three different situations when dealing with a collective agreement. In some cases, a practice has been common and accepted despite the fact that it is contrary to the contract. In other cases, a practice of long standing concerns a subject on which the agreement is silent. Finally, arbitrators will use past practice to discover the meaning that has been given to agreement language that is ambiguous.
When and how can you challenge past practice?
If the timing allows, the best time to raise these questions is at negotiations. If the practice is contrary to the collective agreement, or there is ambiguity in the language involved, almost all arbitrators have ruled that this notice alone is sufficient to end the past practice with the expiry of the agreement. The reasoning is that the other party then has the opportunity to negotiate the protection back into the collective agreement. In the case of ambiguous language, an amendment should accompany the notice to leave no doubt as to what the rule will be in the future.
When dealing with a matter that is not dealt with in the agreement, the complainant is in a more difficult position. Arbitral jurisprudence is split on whether past practice even creates a right that can be defended in this case. Generally, matters outside the collective agreement are seen as falling within management’s residual right to manage the business, unless this right is fettered in any way by the agreement. Giving notice at negotiations, as described above, will certainly be sufficient to overcome past practice. It is not so clear whether it can be ended at any point when an agreement is in force. Some notice will be necessary in most cases: the reasonable notice period under employment standards in your jurisdiction would be a useful guide.
Is the practice common or very occasional?
“For past practice to assist in the interpretation of collective agreement language, the evidence must be clear, consistent and establish a definitive pattern.” (Knopf, Uniroyal Goodrich and USWA, L.V.I. 2837-8) A practice that is very infrequent or that has shown variation will likely not be enough to establish an estoppel.
Is money involved?
The loss of a benefit on which employees have financial reliance will be taken more seriously than one covering work rules, for instance. Compensation in any form will be treated more seriously than work rules that do not affect compensation.
How long have the parties been bargaining?
The longer the negotiating history of the parties, the more entrenched the past practice. New bargaining relationships, even if the actual practice has long pre-certification history, will be viewed as more malleable than longer ones, where the parties have had numerous occasions to bring up the practice and amend it. Because the estoppel created by past practice requires a legal relationship, it cannot be established before a collective agreement is in place.
But having said all of this, the leading case on past practice is Sterling Place where the arbitrator held that past practice had created a right to paid meals even though it was the parties’ first agreement and paid meals were not mentioned in the collective agreement.
What is the source of the right being contested?
Past practice comes into play in three different situations when dealing with a collective agreement. In some cases, a practice has been common and accepted despite the fact that it is contrary to the contract. In other cases, a practice of long standing concerns a subject on which the agreement is silent. Finally, arbitrators will use past practice to discover the meaning that has been given to agreement language that is ambiguous.
When and how can you challenge past practice?
If the timing allows, the best time to raise these questions is at negotiations. If the practice is contrary to the collective agreement, or there is ambiguity in the language involved, almost all arbitrators have ruled that this notice alone is sufficient to end the past practice with the expiry of the agreement. The reasoning is that the other party then has the opportunity to negotiate the protection back into the collective agreement. In the case of ambiguous language, an amendment should accompany the notice to leave no doubt as to what the rule will be in the future.
When dealing with a matter that is not dealt with in the agreement, the complainant is in a more difficult position. Arbitral jurisprudence is split on whether past practice even creates a right that can be defended in this case. Generally, matters outside the collective agreement are seen as falling within management’s residual right to manage the business, unless this right is fettered in any way by the agreement. Giving notice at negotiations, as described above, will certainly be sufficient to overcome past practice. It is not so clear whether it can be ended at any point when an agreement is in force. Some notice will be necessary in most cases: the reasonable notice period under employment standards in your jurisdiction would be a useful guide.
Is the practice common or very occasional?
“For past practice to assist in the interpretation of collective agreement language, the evidence must be clear, consistent and establish a definitive pattern.” (Knopf, Uniroyal Goodrich and USWA, L.V.I. 2837-8) A practice that is very infrequent or that has shown variation will likely not be enough to establish an estoppel.
Is money involved?
The loss of a benefit on which employees have financial reliance will be taken more seriously than one covering work rules, for instance. Compensation in any form will be treated more seriously than work rules that do not affect compensation.
How long have the parties been bargaining?
The longer the negotiating history of the parties, the more entrenched the past practice. New bargaining relationships, even if the actual practice has long pre-certification history, will be viewed as more malleable than longer ones, where the parties have had numerous occasions to bring up the practice and amend it. Because the estoppel created by past practice requires a legal relationship, it cannot be established before a collective agreement is in place.
But having said all of this, the leading case on past practice is Sterling Place where the arbitrator held that past practice had created a right to paid meals even though it was the parties’ first agreement and paid meals were not mentioned in the collective agreement.
