Undermining collectives by "passing on"
Employers must not undermine collective bargaining or collective agreements by automatically passing on collectively bargained terms and conditions to employees not covered by that collective bargaining or agreement.
This does not mean that an employer cannot offer other employees the same, or substantially the same, terms and conditions as those in the collective agreement. Employers must bargain in good faith with their individual employees. When they do so, the outcome may be similar or the same, in many or most respects, to the outcome in other collective or individual bargaining that the employer is involved in.
It is, however, a breach of good faith if:
- During collective bargaining, an employer passes on a term or condition reached in bargaining with the intent or the effect of undermining the bargaining (‘a term or condition reached in bargaining’ means a term or condition that the parties have agreed or accepted should be a term or condition of the collective agreement, if the agreement is concluded and ratified)
- 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.
Unions and employers are still able to agree that collective terms and conditions may be passed on to other employees or other unions. Where there is such an agreement the employer can, in good faith, pass on collective terms and conditions.
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 or substantially the same as 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 to the number of employees not covered
- How long the collective agreement has been in force.