But the arbitrator also decided that even if the plan had not been part of the agreement, the behaviour of the parties in the city forbids arguing differently. In this case, the recipient codified in 1964 a requirement of the disputed performance plan. The collective agreement referred to the negotiation of Article A21: « Negotiations on the plan take place from time to time, which can be separated from collective bargaining. » The city said it could take the unilateral action because the plan was not part of the agreement. The union responded that the plan was indeed part of the collective agreement and that the city was therefore required to negotiate amendments. According to Mr. Frazer, the arbitrator`s conclusion is that past conduct could be used to include a plan in a collective agreement, the limits of the law on the subject. « The language is clear, unambiguous, to the reference to the retirement plan in the collective agreement and referring to the collective agreement, » he wrote. « In short, in this language, the retirement plan is linked to the collective agreement and inserted into the collective agreement by reference. » All CUPE members work under the protection of a collective agreement called a collective agreement. Your local union negotiates the terms of the agreement. Elected local union leaders also work with the employer to resolve workplace issues. If you want a copy of your collective agreement on paper, talk to your trustee. If you don`t know who your administrator is or how to contact your office, contact the CUPE office near you.
The arbitrator disagreed. A reading of the collective agreement as a whole made it clear that the plan was part of the agreement and prohibited any unilateral change. Nevertheless, the City submitted that in the absence of clear and explicit language in the collective agreement that limits its right to unilateral amendments, it has every right to do what it does. In your opinion, the only language acknowledged that negotiations on the plan, when they took place, could take place at a different time than during collective bargaining. Until this case of maladministration, there had never been a change to the plan without the union`s agreement. A 1995 City Council report stated that changes to the management of the plan required such consent. Throughout the parties` behaviour, it was indicated that they expected the changes to the plan to be negotiated. For example, the parties negotiated contribution rates and changes to the 2007-09 agreement plan. « The decision expands the law to suggest that past behaviours can work to make a retirement plan part of a collective agreement, even if the plan was not clearly included in the contract, » says Mitch Frazer, the Genoese pension officer at Torys LLP in Toronto. « And if a plan is part of a collective agreement, it is a dead stop, to the extent that there is unilateral action. » If you have questions about your rights in the workplace, the best person you can talk to is your steward or local leader. You will know the details of your agreement.
« In this case, there is sufficient evidence to conclude that the parties have been tied for decades to the collective agreement and collective bargaining process, » he wrote. But whether a plan is part of the collective agreement or not, it can be a grey area. The Court of Arbitration, in a 2-1 decision, sided with the union earlier this month.