The party so decided may revert to the clear language of the agreement by sending the other party a notice (usually referred to as an estoppel letter) indicating that it intends to return to the language of the agreement at the end of the current round of negotiations. The other party is then, of course, in a position to present a proposal to amend the text of the agreement at the negotiating table in order to bring it into line with previous practice. It is not appropriate for the employer to change its interpretation of a section without first giving the union the opportunity to negotiate better language in the agreement. If you hear the word “forfeiture” or the union or employer is “arrested,” it will be referred to. Either party has allowed a particular interpretation of the agreement to remain unchallenged for so long, or has allowed a practice that goes beyond the formal wording of the agreement to be so widespread that it is not reasonable to change the situation unilaterally. Nevertheless, the university has indicated that it intends to retain the increases. The exact wording of estoppel`s letter reads: “Faculty members do not receive a CPI if their careers are not progressing satisfactorily or if they have reached a plateau.” We responded by proposing to delete section 2.02(d) from Part 2 (it is part of our proposal #3). Estoppel`s second letter refers to the “annual reports” that departments have developed and that members complete as part of the performance process. The collective agreement does not actually mention “annual reports” as such.
Instead, section 2.04(e) of Part 2 states: “All members eligible for the merit review shall provide the leader with a summary of their relevant scientific, teaching and service activities and may include an indication of the nature and importance of the activities.” This case concerned the employer`s long-standing practice of paying certain groups of employees for their overtime at “leave rates”. Other workers were paid at the minimum rates required by the Canada Labour Code. The original employer, Saskatchewan Wheat Pool, began this practice. The Saskatchewan Wheat Pool collective agreements did not set the vacation pay rate for overtime. When Saskatchewan Wheat Pool acquired Agricore United, it was renamed Viterra. Viterra, as a new employer, has negotiated new collective agreements with the union. The overtime leave rate was not discussed in collective bargaining and no significant changes were made to the wording with respect to vacation pay or the wording of overtime. The university has now indicated that instead of annual reports, which often contain much more than a summary of activities, it intends to return to the very language of the agreement. The association did not make a proposal to the table to reintroduce the annual reports. In our view, the reporting forms developed by some departments have become so out of control that they are extremely cumbersome.
A simple summary of activities is all that the agreement requires, and we think it makes more sense than current practice. More than a year after the new agreements were reached, Viterra`s new management has discovered the practice of paying leave to certain employees. Viterra began paying all workers under the Canada Labour Code without consulting the union. The union filed a complaint, which was upheld on the grounds that the collective agreement implicitly prescribed higher rates of pay and that Viterra`s previous practice had in fact become part of the collective agreement. The arbitration panel`s decision was upheld by the tribunal. In the recent decision Viterra v. Grain Services Union, 2013 SKCA 93, the Saskatchewan Court of Appeal reaffirmed the power of arbitrators to comply with previous practice in enforcing a collective agreement through the doctrine of forfeiture. During the 2014-2016 round of bargaining, the University of British Columbia issued an estoppel letter noting that it would no longer allow members to extend the “end of the year” in cases where the rejection of the tenure complaint would continue after the end of the last year. This is a rare circumstance, but the consequences for members in cases where someone is fired, leaves university and then gets a job as a result of the complaint are enormous.
The association has put a proposal on the table in this round, and although we have not received the wording of the agreement we are seeking, we have reached an agreement so that the current practice can be continued for the duration of the agreement. The issue is back at the negotiating table. Our proposal 19: “The Association proposes to amend section 2.03(g) of Part 4 so that if a member is denied the term and the complaint is not resolved within the last year, the member`s appointment will be extended” refers to this estoppel letter. The Saskatchewan Court of Appeal rejected the arbitral tribunal`s position that the payment of leave entitlements had already been included in the collective agreement, but upheld the committee`s conclusion on the issue of past practice and forcing. The Court concluded that it was reasonable for the arbitration panel to conclude that Viterra had in fact argued that it would continue to pay leave to certain workers by stating otherwise during the negotiations. The Court also found that the panel had reasonably concluded that the Union had relied on this representation to its detriment. Therefore, the criteria for determining confiscation were met and the Court found that the panel had reasonably concluded that Viterra could not change this practice without negotiations with the Union. On January 3, 2017, prior to the start of this round of negotiations, the University issued two letters of estoppel.
The first was on our annual increases (CPI). Article 2.02(d) of Part 2 states: “The CPI may be retained if the Member demonstrates unsatisfactory progress in its career during the relevant period on the basis of the relevant criteria set out in Article 4 of Part 4.” As far as we know, this clause has never been used and we consider it an anachronism. There`s a reason most Canadian universities have a progressive system like our CPI system. .