Reclassifying work from inside to outside a collective agreement

Changing a job description so it isn't governed under the agreement
By Brian Johnston
|Canadian Employment Law Today|Last Updated: 02/22/2012

Question: Is there a way to determine whether work performed in a unionized environment can be reclassified to fall outside of the collective agreement? Can a collective agreement play a role in defining a position or work performed?

Answer: Yes; whether work performed falls outside the collective agreement can be determined by reference to the certification order issued by the applicable labour board and by the collective agreement itself. Collective agreements typically contain a provision dealing with “union jurisdiction,” which may be supplemented by job classification or wage rate information that can be relied upon to determine whether the work performed is within or outside the bargaining unit. However, most employers are reluctant to narrowly define job characteristics in a collective agreement, as a narrow definition runs the risk of employees resisting work assignments based on the notion that “it’s not in my job description.”

As to whether the work can be reclassified, if the changes to the job take it outside the bargaining unit, typically employers need to go to the labour board to amend the bargaining unit description to ensure the job as defined in the certification order falls outside the bargaining unit. Contentious bargaining unit construction issues typically fall within the sole jurisdiction of a labour board. Employers are usually prevented from engaging in collective bargaining “to an impasse” to take a job outside the bargaining unit (C.U.P.E., Local 1602 v. Haliburton, Kawartha, Pine Ridge District Health Unit). The expectation to refrain from bargaining to impasse was reiterated in Kingston Typographical Union, Local 30204 v. Kingston Whig-Standard, where the Ontario Labour Board said: “It is accurate to state that a party to a collective agreement cannot lawfully bargain the unit configuration to impasse.”