If a collective agreement doesn't contain a termination provision, what is the minimum requirement for notice?
Question: When a collective agreement doesn’t contain a provision for termination (absolutely no reference to termination language in the agreement) and defers to the minimum requirements for both notice and severance payment under the Canada Labour Code, does a federally-regulated employer have to acknowledge “common law” statute?
Answer: I will begin with a caveat: I practice employment law, not labour law. In my practice, I do not deal with collective agreements or unionized employees. However, having looked into the issue, with some assistance from others, my understanding is the current state of the law suggests common law rights will not be implied in collective agreements. In order for the bargaining unit members to have the benefit of the common law, the collective agreement must explicitly import such rights. Somewhat interestingly, the opposite conclusion was reached back in 1994. The arbitration board in Reliable Printing Ltd. v. G.C.I.U., Local 255-C, found that unionized employees do not forfeit their common law right to notice of termination unless it is expressly extinguished in the collective agreement.
Subsequently, however, the proposition in Reliable has been rejected. The arbitration board in Motorways (1980) Ltd. and Teamsters Union Locs. 979, 990, 395 and 362, rejected the general application of Reliable because of the danger it posed to the integrity of collective agreements. Indeed, the board found common law rights must be conveyed in the clauses of the collective agreement in order to be applicable.
Since then, arbitration boards have rejected common law reasonable notice principles in cases involving lay offs. When collective agreements don’t have termination provisions specifying a required period of notice, arbitrators are unlikely to find the common law period of reasonable notice is implied.
For more information see:
• Reliable Printing Ltd. v. G.C.I.U., Local 255-C, (1994) 39 L.A.C. (4th) 212 (Alta. Arb. Bd.).
• Motorways (1980) Ltd. and Teamsters Union Locs. 979, 990, 395 and 362, 1998 CarswellNat 3198 (Can. Arb. Bd.).
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.
Answer: I will begin with a caveat: I practice employment law, not labour law. In my practice, I do not deal with collective agreements or unionized employees. However, having looked into the issue, with some assistance from others, my understanding is the current state of the law suggests common law rights will not be implied in collective agreements. In order for the bargaining unit members to have the benefit of the common law, the collective agreement must explicitly import such rights. Somewhat interestingly, the opposite conclusion was reached back in 1994. The arbitration board in Reliable Printing Ltd. v. G.C.I.U., Local 255-C, found that unionized employees do not forfeit their common law right to notice of termination unless it is expressly extinguished in the collective agreement.
Subsequently, however, the proposition in Reliable has been rejected. The arbitration board in Motorways (1980) Ltd. and Teamsters Union Locs. 979, 990, 395 and 362, rejected the general application of Reliable because of the danger it posed to the integrity of collective agreements. Indeed, the board found common law rights must be conveyed in the clauses of the collective agreement in order to be applicable.
Since then, arbitration boards have rejected common law reasonable notice principles in cases involving lay offs. When collective agreements don’t have termination provisions specifying a required period of notice, arbitrators are unlikely to find the common law period of reasonable notice is implied.
For more information see:
• Reliable Printing Ltd. v. G.C.I.U., Local 255-C, (1994) 39 L.A.C. (4th) 212 (Alta. Arb. Bd.).
• Motorways (1980) Ltd. and Teamsters Union Locs. 979, 990, 395 and 362, 1998 CarswellNat 3198 (Can. Arb. Bd.).
Stuart Rudner is a partner who practices commercial litigation and employment law with Miller Thomson LLP’s Toronto office. He can be reached at (416) 595-8672.
