Contract Language Objectives
We want contract language to be:
- Relevant & Useful to actual situations in the workplace, and actually meet our objectives.
- Fair and Equitable from a human rights and equality point of view.
- Clear to our members who are not lawyers. Unclear language will only create more grievances.
- Enforceable by workplace representatives and at arbitration if necessary (the final step of the grievance procedure).
Remember: The point is to limit management discretion and be clear and specific about what they must do.
May, Shall, Will and Must
Pay attention to the differences between “may” on the one hand, and “shall and will” and “must”, on the other.
The word “may” gives management a choice. “May” is discretionary and not mandatory.
In most cases, “shall” and “will” mean management must do what the words say. Exceptions happen when interpreting “shall” and “will” as mandatory, would lead to an unreasonable, absurd, illogical conclusion.
“Must” always means what it says. There are no exceptions.
Change management actions from “may” to “shall” or “will” or “must”.
Another way to make contract language enforceable is to spell out specific consequences.
For example, If a clause on the grievance procedure said that if management failed to answer a grievance within the time limit specified, even though the clause says “management shall” answer within a certain time limit, it is not reasonable to interpret this clause as mandatory because the union has another remedy in the grievance procedure itself: we can take the grievance to the next step.
SO to make this clause mandatory, we should add a specific consequence which will result if management does not do as the words say. This could be something like: “Failure by management to reply in writing within three days of receiving a grievance at step one, will cause the grievance to be deemed granted.” This makes the clause mandatory, not discretionary.
What We Need to Know About Contract Interpretation
- The plain, everyday meaning of the words carries the most weight.
- Previous decisions of arbitrators on similar words and facts carry weight. Example: Past decisions on the scope of management’s rights tell us that we need clear and explicit language to restrict management’s rights in areas such as contracting out. A union recognition clause or a description of the bargaining unit are not enough by themselves to stop contracting out.
- Weasel words will weaken us. Example: “wherever possible”.
- We need to know the difference between “May” on the one hand and “Shall”, “Will”, and “Must”, on the other.
- There are some unwritten limits to management’s rights. Even if there aren’t exact words in a collective agreement to limit management’s rights, there are some situations where it is understood that management must act reasonably. Example: Even if the contract does not specifically address the issue, a company rule must be fair and reasonable. It must be consistent with the contract, clear and unequivocal, consistently enforced, brought to the attention of the workers if it is to be acted upon, and brought to the attention of the worker before it becomes the basis of a discharge.
- Collective agreements can provide better than the law but generally not less. Because arbitrators have the power to apply relevant workplace legislation such as the human rights code and the health and safety act in their decisions, workplace legislation is generally considered to be part of the contract. Exceptions to this can only be granted by permission from the appropriate government authority.
- Past practice does matter. If past practice is consistently followed, clear and unambiguous, and known to both sides, it carries weight when the words in the contract are not clear or are ambiguous.
- Statements made in negotiations and meant to be relied on by the other side can be enforced. Example: The Company always provided a holiday bonus at a certain time of year. The union proposed at the bargaining table that this benefit be put into the contract. The company said to the union bargaining committee in negotiations that it wasn’t necessary to put the bonus into the contract because the company would continue to provide the bonus. Because that statement was made in a context (negotiations) where it was meant to be relied on by the union, chances are good that the union could enforce that promise through arbitration. Good record-keeping is key!
- We need to protect Letters of Understanding and Side Agreements. At every set of negotiations, the union bargaining committee should review any letters of understanding they want to keep. The contract should refer to them. Each letter should say refer to the contract. They should be resigned and re-dated. They should be printed as part of the contract.
- Things not mentioned are excluded. What is not mentioned in a list is understood to be excluded. Check and re-check to make sure any list of things includes everything that the list is meant to include.