Arbitrators broadening their authority over management rights
A recent arbitration brought up the issue of when and how employers can introduce new policies into the workplace on topics not covered in the collective agreement. Common examples include attendance management policies and privacy policies. The leading arbitration case on this issue is Lumber and Sawmill Workers’ Union, Local 2537 and KVP Co. Ltd. (known as KVP) and reviewing its six-step test of whether a unilateral policy was properly introduced is instructive.
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must be informed of the possibility of discharge if the policy is the foundation of the discharge.
6. It must be consistently enforced.
Unions will be vigorous in their arguments that a policy has an impact on some aspect or other of a contract and where the agreement is not very minimal in its language, they may be successful. Even when the policy does not infringe on the collective agreement, the possibility or the reality of discipline allows arbitrators to take jurisdiction over a grievance filed against the policy.
The employer can, of course, remove the unilateral nature of the policy by negotiating it or discussing it with the union, but there are very good reasons why a union would not want to become involved in such discussions and equally good ones why an employer would not want them to either.
Recent arbitrations reported in CLV have required employers to modify attendance management policies where they violated privacy and were coercive, dress codes were modified or struck down where there was no valid business case put forward, and video surveillance cameras were removed where their use could not reasonably fulfill the need proposed, but an attendance management policy was okayed despite no warning of discipline.
One recent addition to arbitrator’s powers is the enforcement of employment-related statutes. This allows them to view new policies through the lens of guarantees in employment, human rights, health and safety, and privacy legislation.
Finally, a line of arbitration cases has “read into” collective agreements a requirement that employees be treated fairly even where language to that effect is not present. And, though no clear trend has revealed itself, arbitrators have also been toying with the notion of a right of privacy.
So, for companies developing policies on current issues such as attendance management, sick leave abuse, drug testing and privacy, keep in mind not just the tried and true KVP test, but also emerging areas of arbitral authority that might invalidate your policy.
Gordon Sova is the editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information visit www.hrreporter.com/clv.
1. It must not be inconsistent with the collective agreement.
2. It must not be unreasonable.
3. It must be clear and unequivocal.
4. It must be brought to the attention of the employee affected before the company can act on it.
5. The employee concerned must be informed of the possibility of discharge if the policy is the foundation of the discharge.
6. It must be consistently enforced.
Unions will be vigorous in their arguments that a policy has an impact on some aspect or other of a contract and where the agreement is not very minimal in its language, they may be successful. Even when the policy does not infringe on the collective agreement, the possibility or the reality of discipline allows arbitrators to take jurisdiction over a grievance filed against the policy.
The employer can, of course, remove the unilateral nature of the policy by negotiating it or discussing it with the union, but there are very good reasons why a union would not want to become involved in such discussions and equally good ones why an employer would not want them to either.
Recent arbitrations reported in CLV have required employers to modify attendance management policies where they violated privacy and were coercive, dress codes were modified or struck down where there was no valid business case put forward, and video surveillance cameras were removed where their use could not reasonably fulfill the need proposed, but an attendance management policy was okayed despite no warning of discipline.
One recent addition to arbitrator’s powers is the enforcement of employment-related statutes. This allows them to view new policies through the lens of guarantees in employment, human rights, health and safety, and privacy legislation.
Finally, a line of arbitration cases has “read into” collective agreements a requirement that employees be treated fairly even where language to that effect is not present. And, though no clear trend has revealed itself, arbitrators have also been toying with the notion of a right of privacy.
So, for companies developing policies on current issues such as attendance management, sick leave abuse, drug testing and privacy, keep in mind not just the tried and true KVP test, but also emerging areas of arbitral authority that might invalidate your policy.
Gordon Sova is the editor of Canadian HR Reporter’s sister publication CLV Reports, a weekly newsletter that reports on collective bargaining and other issues in labour relations. For more information visit www.hrreporter.com/clv.
