Bargaining with a Union? Be Aware of the Statutory Freeze

As many collective agreements in the province are set to expire, employers' attention is going to shift from the day to day management of their business or organization to the bargaining table. During bargaining it is not uncommon for many employers to re-assess how they best organize their organization in the most efficient ways possible. Sometimes this is achieved directly through bargaining, however, if there is resistance at the table, sometimes employers have to try to make changes themselves. 
However, it is not always clear what changes employers are able to make and when. Some changes may be restricted by virtue of what is referred to as the "statutory freeze" under the Labour Relations Code. The Code in Alberta provides that there are three periods where the statutory freeze is in place: 
1)     Section 147(1) of the Code sets out the first. It lasts from the filing of a certification application until its dismissal or 30 days after the certificate is issued.
2)     Section 147(2) sets out the second. It lasts from when notice to bargain a first collective agreement until the expiration of 60 days. 
3)     Section 147(3) sets out the last freeze period. It takes effect when notice to commence bargaining to renew a collective agreement is served until the conclusion of a new agreement, a decertification, or the start of a strike/lockout.
The statutory freezes places some restrictions on altering the rates of pay, a term or condition of employment, or a right or privilege of any employee until the freeze is over. 
Unions will often argue that these restrictions bar an employer from making changes to the business that impact employees' wages or benefits, or how they work. This position is inaccurate for a number of reasons. There are situations under the Code where it says that employers have the express right to make changes. Employers are allowed to make changes if (a) there is an established custom or practice; (b) the existing collective agreement allows the change; or (c) the union consents to the change. 
If employers are considering making any changes to their business that will impact employees, the case law makes it clear that it is important to identify how the proposed changes fit into the above-noted situations. For example, is the business changing hours of work or laying off employees in accordance with language in a collective agreement? 
The duty to bargain in good faith adds a layer of complexity to this analysis, as employers may also have a positive disclosure obligation regarding any changes that they are contemplating. Not only do they have to consider whether anticipated changes are allowed to be made during the statutory freeze, but they must also consider the timing of their disclosure to the union in order to mitigate against a potential unfair labour practice complaint. 
If you and your business are entering into bargaining discussions with your union, it is vital that you understand both your obligations under the Labour Relations Code but also what changes you are able to make and when. To assist you in that endeavour, please feel free to contact any of our knowledgeable lawyers who will be able to guide you through the process with both sound legal advice and practical bargaining strategy. 

The information in this update is intended as general information and should not relied on as legal advice.