COLLECTIVE BARGAININGUNIVERSITY OF GUYANA FACULTY OF SOCIAL SCIENCES DEPARTMENT OF LAW LAW 314 - EMPLOYMENT LAW WORKSHE. Prof, KS. Massiah Collective Bargaining and collective agreements: The writer Kahn - Freund described « collective agreement as “an industrial peace treaty and at the same time a source of rules for terms and conditions of employment, for the distribution of work and for the stability of jobs.” Collective agreements are written arrangements entered into between trade unions on the one hand and employers on the other, Such agreements contain substantive rules and procedural rules. The substantive rules set out wages, hours of wark, bonuses, holidays and all other conditions of employment. The procedural rules embody the methods to be used for the prevention and settlement of disputes that might arise between employer and employee. ‘The parties usually agree to resort to industrial action only when they have failed to produce a satisfactory settlement though the procedural channels. ENFORCEMENT OF COLLECTIVE BARGAINS ‘The_central question raised by collective agreements is whether they are eable in, a court of law, The answer is that thev are not enforceable. at law unl the agreement provides that the parties intend that the agreement shall be a legally enforceable contract. (See Trade Union and Labour Relations (Consolidation) Act, 1992. See also Ford Motor Co. V. A.E.U. (:969) 2 All E.R. 481, Monterosso Shipping Lid. V. International Transport Workers" Federation (1982) IRLR 468). This is the Enalish position. It seems that at common law cousts beld that the agreements were unenforceable beceuse on analysis it did not appear that they were intended to ereate legal relations. In the Ford Motor Co. Case, Geofrey Lone, J., considered such agreements to be “composed largely of optimistic aspirations” that were not intended to be enforceable in a court of law. See page 496 of his judgment, letters C,D and E. Tn Guyana, the position was the same as in England today, until the enactment of the Labour (Amendment) Act, 1984, which prescribes that every collectivt! agreement shall be conclusively, presumes legally enforceable contract untes® if contains a * 10vi the contrary.in order for the terms of the collective agreement to be incorporated in an individual's contract of employment there must be some ‘bridge’ between the collective bargain and the individual contract, There are at least three ways in which this may be accomplished, {a) incorporation by agency (b) express incorporation; (©) _ incorporation by conduct. AGENC’ One school of thought is that individual contracts are affected by the collective bargaining process because the union acts as agent for its members. Courvof law have not tended %0 accept that proposition which is difficultg to conceive. (See Shipping AS of Geo: Shit (Demerara) Ltd. V._ Arthur Hayden (1975) 22 W.LR. 135). — See pages 153 ~ 156; 166. EXPRE TION: This is the most frequent mechanism of incorporation and is achieved by express reference in the actual contract or in the written statement of terms. National Coal Board =v Gallety (1958) ] AUER. 91, .obertson =-v- British Gas Corporation (1983) IRLR 302, Marley —v- Forward Trust Group Lid. (1986) IRLR 369, Gatagher ~v- The Post Office (1970) 3 ANE.R 712). INCORPORATION BY CONDUCT: Collective bargains are sometimes implied into individual contracts by way of conduct, for example, where there is universal observance of the collective bargain in the work. place. This is sometimes calied implied incorporation. Professor Kahn- Freund called it “crystallized custom.” For a case on point see Hill -v- Levey (1858) 157 ER. 366. An irmportant point to note is that terms implied from collective agreements on the basis of custom er conduct cannot oust an express term covering the same subject-matter, (Gascol Conversations Ltd, Mercer (1974) IRL 155), Section 3 of TESPA provides that where a collective agreement provides higher benefits than those prescribed under TESPA, the employee shall enjoy those higher benefits which shall have force as if enacted under TESPA, KSMiwm. September, 2014 Pref Maauiot: COMMONWEALTH _ CARIBBEAN EMPLOYMENT AND LABOUR LAW Ths comprehensive tet proves autho coverage of a wie sige of employment and oor hw sues ating ihe Cemsinnnweatn Cora Ife cnpene he a famployment aed Lic a the rion wt pater erence ta Asal Darbc Sint, SeTawinJomara at Penudad a Potng, Ain thence te taal Tink és English commen law artel the persuasive prececlent af ether ‘Commonvycaltt jurisdictions, he ahora igi tbe ineesing operatic ots evolving ae oro he toe plo in developing Common Caribbean jurspruevce. Key top hey eapove el Pinployment satus ar! terms of tae employanet contracts [Realunslancy, retreuchmenc ind severanees Wren ant ants dasa, Inelganat uetion; Hinerging issues such as foterct usage, workplace monitoring, whistlelonving, data protection arid sesual harassment, Smvnwcculh Carica gpl eet coud Labans Law is an essential vesenvee for students reach ployment, Industrial Relations auc Dismissal Law cows antl ar invabable reference = anid thr buman resouser,iarhstvil relations and legal practitioners in the Cisihbean, Natale Corthésy isan atiorneycatsow, a foriney Logg Officer in the Ministynol Labour ad Social Seenrity Jamaica, ana Lacturer inthe Facutiy of Law atte University af tac Weet. Tues, Mona, ‘She bole atv LEM in futelictal Prapergy Law (UCIE), Ske lectures con Tart, Inellsecual Property aid Enelostial Rete ions Law Carla-Anne Harvis-Roper is an stiormey-at-oye and thie Diretor, Legal Seeviges Division, Ministry of Labour and Social Security, Jamaica. She holds ati LEM in Binploynent Lave {Git Angin). She fretures on Labour an Ermployrsent Lave ia the Mona Schoo! at Beaivess ‘nit Mangement, Hacuky of Social Sciences, University of the West Incies, Mona, Jumaica. gaia i Het MA. > pila Cane wees >‘The notice shall sare~ (@) the names and clasifcations ofthe inveived worke 5B) Me leg of service and current wage rates of te involved workers 1 (© she reasons for the receadancys (@) the propese date ofthe termination of employments (©) he erteria used in the selection of the workers to be retrenchied; $5.0) any other relevant information J Whece norce of rtronclnw given by an exaployes to fewer thaw five involved wodkers 5 Solved by notlee of retrenchment to any other wrker within te time period of de y Previous woice to dhe otier workers, all workers receiving such nesice sll he eoomect Cegethe fn deter ee mer of sorkers to whem tie has een ives fos the _ Purposes of this sesion Stn 5 Consattion pro to firma! nae eta scion 4 an employer rs ror the giving of malate in writing of phen chee ato rovaltaion with the recognised majors sion witha view so exper ‘he possibly of sweating, cedacing oF mitigate the elects ofthe proposed venenehrec 7 bour Code sve K2A Pace’ tod a 18 chil Tra ea teerent besween a cinployee or employes oF de egies agent of ‘her on the oe hand aud a registered trace union on the othes whi {a} isexeeutedsfler the effective dae of dhs Pars ancl _ ©) soe nt contain a prvion which howerer expressed) sates thatthe agreement or pov‘ oft intended vo be legelly enforceable, shal fc concisely precumed nse intended by the parties not tn be legally enforceable conteace [tate coletive agrees exccute between suck pane ier che else date of RPA ote a preson whieh however expressed stato cha a spect por ofiie pare ant intended be legally enfenceabl, tbe agreement, withthe exeepon of thee eerie tise resin co lave bees nested by the paris nat hex eely culereeabie contact, Pans 8 lective aresmcntexceuted beeen sui partie afer the effeutive dae ofthis Tat contin » provision which (however expressed) sates that al the neeosne Mendes © be lgaly enforceable, the agreement shal he conehwsvely preaanedin hone heen intense by the patties uhereca to be a legally eufororatteeomurn Sele 27 Rafe of allio greets ‘sty collective syrorment between registered bargaining agents hich he heen eevee Saanetag CEN weer he provisions of section K25 2 shal therein be 4 eae Shirsabe courac (0 the exteut the patie there heel ie he enforcer uote in seetinn B26, 20) Seat conte 0 dhe essen teed tobe enforceable, shall be eaters the Coats Ja the sarme inner assy othe eufowceahte eontrneteBuyuyP6 1eq yo syaaay 1949) -epor ata suse Kezae uur ‘3961 ‘suonepossy ssaoydurg pu suoMEn apen UO Us Today VOKssUHED TeAOUOR mL "was sHwLLD AsaA ‘of paties ane ayy Vay uO ONDE FeiAAPLE a asst oF saNBe éwOU 1d 94) pate payeatdeD Azpa uy are sammpaoord s5ayz “seg Le fr Uo sepeed ays umancaq seaueiaIp an{o508 YOTYS 53H Jo ano ase suay agusaya soUw“ywaursaste erataa 730 “yous os pardope spOUus Mey CWO pe ay 1p Aipeodg #8915 4na “auRLea9:Be seman sed ty ADAM a emparord uasenag sey wt saotaiaHp ae e224 “1UaULAoyduo Jo svar 30 nopoasatd aap 29} pasn aq 61 pawsp spores pue suowmasUy 2 UO raed Sgupeiog aansaqeo au WosHag LORETSA NS UO auoulzaLTE te, ue 90207 Ip smoyea ayvus OF Ales aunpanord pue aouersqns, my ous wou sapuesuT2I7o PSH W440 suoISep aasreasnat0> SUED suo ape yup wisiondans rain Jou sey UI uopnponuy BurureBseg aanrajoD vL388 Coane bagsinng ‘usually consists ofthe shop steward reaching uewestandings wit mda ment a veritten agaeeme from below. It pointed te the central defect in the doce ta ear sig shop elations ant en he form ah 1m particular, there was ani ‘absence of ready, clear and effective disp ‘cedures’ and this swelled the outbeeak of unoffci which often when workers and management differed om what was agreed hetiseen noted ‘the tendency of extreme decent tefo indecision and anaschy’, and sougiit: cele gaining snd amore ary metho sad ther repesentatives to exercise bei indaence ithe aco ‘The way legat attention from and binder action to remedy the real cates! (para. 264 Proposed a statutory standing body to a ‘Bow been superseded by ACAS. Its propos tbat companies employing over ‘employees should register thee agreer to focal bargaining and from basic pay to incentive based aeran such as share options ane pertoumance-reated pay. Shop stewards Domestic bargaining the main preserve of shop stewards, who are elected bi fellow workers and are often more in touch with the ' time union hierarchy. in bigge superstructure, headed by a conveno: who ml ands, however, caxzy out the de :: ‘The origin of the position can be traced Baek to the father of chapels fr union branches, mainly at fist In the printing industry. The practice 5 tothe manufacturing and engineecing industries after the Pitst World Wat, occupation and Increasingly i collar sector, although they ere there often known by different nemes, fore Colecthebauiiny 389 ton malsed by collective bargaining is wheter are the eouuts. Most controversy has surcourided the issue wl 1g disputes isid down in the jem with privcy he intended to have legate reasons that i the leading case 9), Geoftrey Lane } fourd that the We agreement was not intended ta create legal ly enforceable agreement! (Ty 18390. colecivebargining practices, the law woud be evaded. Although the idea was revived i ‘Paper Irtustrial Relations tn the 1990, it was agaia dropped. Some agreements may, however, fal ouside the stanitory definition, seated by the recognition provist Employment Relations Act 1999. Where the Central Arbitration Commu nas already made a declaration of recognition, ther Which either side may subsequently apply bargaining’ fn effect 2 barga arrive at such a method valent 1 method imposed by the CAC has, ofa binding contract between the union and the eraployer, and Is eofote to the civil courts for specic performance. Sit the CAC imposes # method of collective bargaining on parties recognition known ia the Acta hese the parties ag in many ways a case study law to colfeclive bargalnlng at various stages 3S by managen ‘most industrial relations Issues, one which che parties thought id leave well alone, Recognition spread mainly by custom and p juugh, increasingly, caven up. These were va ‘The only relevant legal provisions concer where Parliament inserted in several statutes a duty on employ “orgentsations appearing to he appropriate with a vies to esta Collective torgaivng 397 a5 we have already sean, few unions did register, The measure was abolished by TULRA 1974 bat re-enacted in an even raore com: foemation releva Ichough awe ‘efron of the concept mate associated employe: the statutory duties the legislation}; and, when the procedure was CAG dows issue such a declar all goes wel, ast for a392 Colethebarpining ‘ments, either those entered into before its coming inte force, oF aftec Schedule is, as we shall se, invotved with a hpbtid foc ef Derbaps, better described as ‘semi-voluntary set out in paras 23.408 tue most Important of these is the requirensent bargeining unit must already belong to the uni ton gnd that a majocty of wedkers in the bargaining tnt mel {in favour of recognition of the union in a Ballo (pars, 36). Ia ordes toa Lnons, the CAC will noraally relat sp bargatoing untt (paras 38 and 8 is what the employer wants (para. 37), ‘Once the CAC fas accepted an application as admasstble, its next depend on whether oz not leady agreed the appro way fist help the parties to try once more to agree the hargan solution stl proves elusive, the CAC in question, usually measured by mica lot ofall the workers in the unit. However, a ballot may be unneces the bargaining unit are alcesdy union members, CAC will issue a declaration ordering the employer to recognise the further s¢o, untess it decides that a ballot should be held anyway, et Colecivetaysining 393 they do not seppo: jon, of because there is evicence to suggest that the membership fg we given & misleading impression of the degree of genuine support for n in te bargaining unit, erin the The allot may take place either by places concemed, an inure of methods impleyes, inchacing a gene toenlent person-and an oo rkforce during the run-up to the bel eltany ofits des wre por. 2, the CAC uunloa recognition without the need for & bal fue to be shared egually besween the employer the method of collective bargsining” be the bargaining procedure 1 of the statutory recognition arrangement tive bargaining neg 10 attend, what provisions ate to be made ed £0 Ips ce unable to agree—see Trado Us ® a 2.8% Phe Ss eee | emg394 cofecewebanganing Important provislons covering the where a change occurs that may affect the continued viatality of sa can beany of the folowing: (©) a change in the activities pursued by the employer in the couse of bag ‘artied on by him; (o # sebstantal change in the number of workers emp! leves that, because of one of these changes, the ox {sno longer appropriate, it may apply to the CAC, wl ce unable to reach thelr own agreement) ‘between the original and new ba cf support for recogs| "uajority of workers in a new unit already belong to the urtion, untess (on grounds fa, 22 above) the CAC decides to hold a ballot anyway (oa Voluntary recog Part if of he Schedule gives the union the option, ence ithas invoked the stat Colectvebargaiing 395 9 ht tne emleyer ny no ag the fox y min sereement lor ecognition at any (9 recogaition under an agreement for eco ‘te CAC to impose a method of statutory recognition (see above) 8, these procedores take ‘cluding the ultiznate test ‘he bargrining uni to wn they ees etn '¢ procedure after thls largely tollows that for desecognition sinder 1g the ultimat lot ofa the workers he ocaning . Put slmply, (¢coves the st396 Colocive barging arrangement. In principle, this would leave the union open t0 attack by: _gruntied workforce by means of an app recognition, deseribed above. Detriment/dismissal in relation to recognition or derecognition (0) the worker acted with a view to obtaining ar preventing the employer secognising & union under the Schedule; ted or cic not support the ‘employer recognising a union under the Schedule; igor preventing the encling of Gobetvebagining 397 fe which infringed bis of her sight. ancluding batt ly incurred by the complainant in consequence of the ined of; and ie complainant might reasonably be expected to than 2 contract of employme 1d t0 4 sum no higher than the to basic and compet ‘or site would have received ithe cla had been one most agreements were: level, Not surprisingly, there has been particular eraphass on