Workforce reductions are one of the tools available to employers to respond to the COVID-19 pandemic and the current economic downturn. To this end we address two options available to employers:
1. Employers Have a Right to Require Unionized Employees to Do Work that falls outside their Job Description
Right to Reorganize Duties
Assigning new duties within a bargaining unit or reorganizing the workplace within that bargaining unit falls under the employer’s residual management rights. No management right is more fundamental than the right for employers to organize and direct their workforce and, more specifically, to assign work to employees. Management has the ability to reorganize its workforce subject to express collective agreement language to the contrary and as long as it does not act in bad faith, unreasonably or contrary to general law.
Employers may re-distribute the duties of laid-off workers to other workers, including new workers in newly created positions in different classifications.
Consequence of Reorganizing
Although management has the general ability to direct its workforce, there may be consequences for doing so, including the risk of a “classification grievance”. This is where a union alleges that the worker now belongs to a higher classification and should be paid at a higher salary grid. If successful, an employer could be responsible for the difference in pay between the employees former (inaccurate) classification and the new one.
Generally speaking, a union will be successful in a reclassification grievance if:
- The worker performs significant job duties/functions of the higher classification for most of the time
- The job duties from the higher classification are not part of the existing classification; and
- The work performed by the worker make the higher classification the best fit based upon the “central core functions” of both the higher classification and the lower classification (Even though there may be overlapping functions, one classification will be a better description).
An overlap in duties does not allow a union to argue that the more advantageous job description applies. Rather, the core duties performed for the majority of the time must clearly indicate the classification sought by the union since the onus is on them; they must show not only that s/he was required to work outside the classification but that the duties were fully within the scope of that higher classification and not merely an overlap in functions.
Tips and Takeaways
Employers facing reduced workforces who wish to redistribute job duties are best guided by the following:
- Maintain open communication with the Union and the affected workers;
- Have a sound rationale behind the reorganization;
- Work within collective agreement limitations;
- Be cognizant that while seniority and wage clauses may not prevent the reorganization, the reorganization may trigger such clauses; and
- Contemplate negotiating a Letter of Understanding with the union to address the ability of having workers perform work across different classifications during the pandemic at a specific rate of pay.
2. Employers May Require a Unionized Worker to do Work Outside his or her Bargaining Unit and Form Part of another Bargaining Unit
Employers may find that in the reorganization of their workforce, some workers may have to take on duties normally assigned to other bargaining units. This is known as a “transfer of duties”. The general principle is that an employer has the power to determine how it operates its business. While work protection clauses can impose a restriction on the employer’s bona fide exercise of its discretion, explicit collective agreement language is required to do this.
Transfer of duties between bargaining units, or to employees outside the unit, can run against an implied restriction or a bargaining unit work protection clause. Generally, the employer’s ability to assign work outside a bargaining unit is prohibited if, for example, it results in a lay off or reduction in hours of bargaining unit members. In assessing whether there is a violation, arbitrators will implement the “type and volume approach” to the transfer of duties. This approach looks at which duties and how much of them have been reassigned, and whether the new duties occupy a large portion of the duties of the individuals outside the bargaining unit.
There may be an implied restriction that impacts management's transfer of duties that exclusively belong to the bargaining unit to persons that are excluded from the bargaining unit. To trigger the implied restriction rule, the amount of bargaining unit work assigned to individuals outside it must be close to an amount that would occupy an employee for a full shift.
A breach of the implied restriction rule arises when the excluded persons are assigned bargaining unit work to the extent they spend close to the majority of their work day performing that work. As a result, factors employers are to consider when reassigning duties include:
- the quantity of work, such as the time devoted to the transferred work by those outside the unit;
- the quality of work; and
- any overlap of duties.
Given that the implied restriction rule protects work that exclusively belongs to the bargaining unit, overlapping duties performed by both the bargaining unit and those outside of it are not protected. Additionally, there is case law which holds that even where there is no express restriction on the assignment of work outside of the bargaining unit, such a restriction can be implied from the recognition, exclusion, seniority, job posting, layoff, recall and job classification provisions of a collective agreement.
a) If the collective agreement provides that bargaining work cannot be assigned outside of the unit then an employer breaches the agreement by assigning work to others;
b) If the collective agreement does not prevent assigning work to other workers, the non-bargaining unit member is allowed to perform bargaining unit work so long as the bargaining unit work is not done to the extent that the non-bargaining unit member brings themselves into the bargaining unit.
The consequences of inappropriately assigning bargaining unit work to non-bargaining unit members can be significant. The union can grieve the loss of wages, benefits and union dues that are owing to the particular employees who lost the opportunity to perform the work, and in the case particular workers cannot be identified, the union itself can claim those damages. This effectively results in the employer paying twice – once to the non-bargaining unit member who performed the work, and a second time to the employees (or union) who ought to have provided the work.
Tips and Takeaways
While employers generally retain the power to transfer duties even where this represents the redistribution of duties from bargaining units that have been laid off or reduced, they should be mindful of the following:
- the employer should have a strong business rationale for the redistribution;
- the redistribution alone should not be what eliminates the jobs of the bargaining unit;
- the redistributed duties should not occupy a large portion of the work of the individuals outside the bargaining unit; and
- the employer should first review the collective agreement language - in particular, any protection of bargaining unit clauses - to determine any limits on an ability to transfer duties or the consequences of doing so.
In the current economic and health environment, it is likely that the outside forces affecting employers with unionized workforces will have strong rationales for workforce reorganization. Though there exists risk of grievances, employers should engage in a measured and planned reorganization based on their knowledge of their business and the markets they service.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.