Employers can’t undermine collective bargaining or collective agreements by automatically passing on the terms and conditions of a collective employment agreement to employees who aren’t covered by it.
This doesn’t mean that an employer can’t offer employees the same or really similar terms and conditions as those in the collective agreement. Employers must bargain in good faith with their individual employees. The outcome of the bargaining may be similar or the same, in many respects, to the outcome in collective or other individual bargaining that the employer is involved in. The key factor to look at is whether or not the passing on of the terms has the intent or effect of undermining the bargaining or agreement.
It’s a breach of good faith if:
- during collective bargaining, an employer passes on a term or condition reached in bargaining (ie that the parties agree would be a term or condition if the collective agreement is concluded and ratified) with the intent or the effect of undermining the bargaining
- once a collective agreement has been concluded, an employer passes on a term or condition in the collective agreement with both the intent and the effect of undermining the collective agreement.
If the union agrees, then an employer can pass on collective terms and conditions to other employees or unions in good faith.
Matters to be taken into account in deciding whether or not an employer has breached good faith are:
- whether the employer bargained with the employee or employees before agreeing to a term or condition that was the same as or very similar to a term or condition agreed in collective bargaining
- whether the employer consulted the union
- the number of employees covered by the collective bargaining or agreement compared with the number of employees not covered
- how long the collective agreement has been in force.