Les conventions collectives et leurs clauses d’ancienneté Collective Agreements and their Seniority Provisions

Résumé

En plus d'essayer de décrire ce qu'est la convention collective au Canada, l'auteur examine plus spécifiquement les clauses d'ancienneté, leur contenu et leur fréquence statistique pour certains secteurs.

Abstract

INTRODUCTION

In discussing seniority provisions, one may be exposed to making rather serious mistakes in taking a wrong or too restrictive approach to the subject. It would be wrong to isolate seniority provisions from the collective agreements of which they are such an important part, and treat them like some kind of suspended and rootless concepts ; and it would be equally wrong to isolate these collective agreements at least from some aspects of the environment (institutional, social, economic, etc.) within which they apply.

In this article, some comments will be made regarding collective agreements in Canada, in descriptive as well as in purely statistical terms. Secondly, seniority provisions will be dealt with in the same way : their substance will be discussed as well as their incidence.

THE IMPORTANCE OF COLLECTIVE AGREEMENTS

A suggested definition of the collective agreement

Let us take collective agreements first.

When one speaks of the importance of collective agreements in Canada, one can think of several reasons that can justify such a statement. The first such reason might well perhaps be the very nature of the agreement itself. What is a collective agreement ? Personally, we would compare it to

« a private law which, for a given period of time, lays down the working conditions for a group of employees, a group which in more legal terms is called a bargaining unit. That is to say that for the duration of the collective agreement, conditions set forth therein may not be modified by either party unless both parties, by mutual agreement, decide otherwise. We wish to add also that the collective agreement includes a grievance procedure which provides for the examination of complaints arising from alleged violations or supposedly erroneous interpretations of the clauses of the collective agreement ; we emphasize : the purpose of the grievance procedure is not to amend the clauses of the collective agreement, but to examine grievances concerning the application of the collective agreement, such grievances in no way constituting demands for modification of the agreement » ¹.

Some figures regarding number of employees under collective agreements

A second reason why collective agreements ought to be considered as very important documents in our national life, would of course be the high proportion of employees covered by these agreements in a number of major Canadian industries or occupational sectors. The following few figures are taken from the Department of Labour's report onWorking Conditions in Canadian Industry for the year 1966 : close to 70% of employees, excluding office employees, in the very diverse manufacturing industry were covered by collective agreements. If we examine this industry by sector, we note that the proportion of workers under agreements amounted to 96% in pulp and paper, to 98% in tire manufacturing; in the key railway sector, 96% of the travelling personnel are under collective agreements ; of course such percentage are not typical of all cases, far from it; however, the sectors which have just been enumerated are important. We might also point out that the estimated number of employees, in a very wide range of occupations indeed, covered by collective agreements in Canada is in the vicinity of 1,900,000 ² — an estimate for which we wish to take responsibility.

The content of the collective agreement

A third reason why collective agreements are important is their very substance. We have stated on a previous occasion that in our largely unplanned economic and social system, very many matters are left to the parties to collective bargaining to decide, while in other countries with a planned or less planned system, many of these matters are covery by legislation. What are some of these matters contained in our collective agreements ? Vacations, paid sick leave, job evaluation systems, education al leave, training or retraining provisions, seniority rules, etc.. .. to cite but a few.

The impact of the environment on collective agreements

Having said this, one must also point out that our labour relations system, being based primarily on the local employee — management relationship places the parties to collective bargaining and their collective agreements very close to local problems and also close to the community within which the collective agreement is applied. In other and perhaps more simple words, the parties to collective bargaining in this country are generally close to the anxieties, frustrations, aspirations and traditions of those to whom collective agreements apply.

A few examples might perhaps be in order here. Community traditions may have an impact on the number of paid holidays provided for in collective agreements. Strongly family-oriented traditions may have an impact on the kind of paid bereavement leave provisions that are introduced in the agreement : in some instances, some of our agreement analysts, we clearly recall, have noted that the benefits provided under this type of provision tend to be more generous in the Province of Québec than in the Province of Ontario. It can also be speculated that strong family orientations might even have an impact on the type of seniority provisions that are introduced in the agreement : some seniority provisions, in dealing with promotions and layoffs, will take into consideration such factors as the number of dependents, as well as length of service and ability, when considering employees for promotion or retention. Another example. A community which for a long time may have frowned upon the employment of women in industrial occupations will not likely provide strong encouragement to the parties to collective bargaining to introduce a maternity leave provision in their agreement. And as an indication that social pressures might have an impact on the employee relations process, would it be unrealistic to assume that certain community attitudes might put a degree of pressure on the parties to collective bargaining so that the benefits provided under a maternity leave provision would be offered to married mothers only ?

In addition to the broad social and cultural environment, the very type of activity which is engaged in, in the establishment where the agreement applies is also going to have an impact on the content of the agreement. For example, because of the nature of the work performed in an occupational sector, safety provisions may be more frequent in that sector than in another. One can also speculate that in plants and offices that include highly specialized or differentiated occupations, seniority provisions might be, in certain areas, implemented on an occupational basis rather than on a wider basis.

The impact of collective agreements on the environment

Before turning to seniority provisions more specifically, we would want to make one final observation. Indeed in what has just been stated, the impression might have been conveyed that in relation to their environment, collective agreements are simply reflecting environmental conditions, and adjusting to environ-mental changes. If this is the impression that the previous observations have conveyed, it should be firmly stated that such is not our view. For it can be said that collective agreements, by adjusting to environmental and other changes, may obviously facilitate and accelerate change and thereforecontribute to change, and they may generate other changes in turn. Again, perhaps an example would be in order. A useful degree of awareness has been generated regarding problems that technological change and automation may present to employees and to management. More specifically, there is, I believe, a well developed awareness that the introduction of changes in technology may require new or up-dated skills, and new knowledge. Then, when in a context of changes in technology, the collective agreement provides that a training or retraining program will be offered to employees, with the financial support of the company, is it not true that this particular program might in fact do more than narrowly respond to a new educational requirement that has resulted from a changing technology in a particular office or establishment? It is our view that in fact that program may represent a new venture and a new experiment in adult education and adaptability, and in adult training ; it may generate new attitudes on the part of employees towards education, and it may well encourage management and employees' organizationselsewhere to take similar steps in an effort not only to adjust to change, but to facilitate change and progress ³.

Other examples could be offered that would also suggest that collective agreements are not only subjected to environmental factors and forces, but do generate changes also.

SENIORITY PROVISIONS

Let us, then, turn to seniority and seniority provisions, and emphasize that our experience has been in the analysis of seniority provisions, not in their negotiation. Major aspects of seniority provisions will be examined in this article. It may be that to those who have had practical experience in dealing with seniority provisions at the bargaining table, our treatment of such provisions may appear too rigid or too theoretical. That might well be. It will be pointed out, however, that these concepts should be considered as tools of analysis, and that as such they have proven to be very useful in our work in the Federal Department of Labour.

Some figures concerning the incidence of seniority provisions in collective agreements

At the outset it might be of interest to know that in our major study on Collective Agreements Provisions in Major Manufacturing Establishments, that we released in 1964, 90% of the establishments surveyed (non-office workers) had seniority provisions on promotions of employees, and that in 97% of the establishments surveyed, there was a seniority provision on lay-offs. In a more recent study onProvisions in Collective Agreements covering office employees in Canadian manufacturing industries (1967), 86% of the agreements studied had a provision regarding seniority on promotion, while 97% of the agreements examined had a provision regarding seniority on lay-off. So much for the incidence of some of the most important seniority provisions ; it should perhaps be emphasized that these data are for the manufacturing sector only. However, our definite impression is that the figures just quoted represent a fairly accurate picture of the incidence of seniority provisions in a number of Canadian industrial and occupational sectors.

Let us now turn to the substance of seniority provisions and proceed somewhat systematically with various concepts.

1. We would broadly define seniority as the status acquired by an employee at his (her) place of employment through his (her) length of service. This definition, at brief as it is, raises some questions on our minds. It will be understood that only some of these questions can be raised here. How is seniority acquired ? How is it lost ? For example, is an employee going to accumulate seniority starting with his (her) first day of employment with the company, or is he (she) going to start accumulating seniority once he (she) has successfully completed his (her) probationary period ? Once the employee's probationary period is successfully completed, is the length of this period going to be credited to the employee in terms of seniority ? What happens to the employee's seniority when for example she or he is on temporary lay-off? How long can the employee retain the seniority he or she had accumulated prior to being laid-off ? What happens to her seniority when an employee goes on maternity leave ? Does she retain it ? Or does she not only retain it, but continue to accumulate it while she is on leave ? Or can she accumulate seniority only during a certain period of her leave ? More generally, could there be some types of leave during which continued accumulation of seniority would be provided for, while seniority accumulated prior to the taking of the leave would simply be retained during other types of leave? Does an employee who has had to leave the company through no fault of his (her) own, or has simply decided to leave the company, automatically lose his (her) seniority ? 4 These are a few of the many questions that can be raised.

2. For the purpose of analyzing seniority provisions, we have considered two major types of seniority concepts : the first one, straight seniority, means that length of service is the only factor to be considered ; for example, employees would be promoted on the basis of their length of service alone ; in our own experience, this type of seniority is very seldom found in collective agreements in relation to promotions and lay-offs. Which type of seniority concept is, then, more frequently found ?Contingent or modified seniority is far more prevalent in the agreements we have analyzed ; and it simply means that other factors than length of service (such as ability to do the job, performance, punctuality, etc.) are to be considered along with length of service. Perhaps two brief examples here may be more helpful than a lengthy explanation. Here are, then, two examples of collective agreement provisions based in our view on the concept of contingent or modified seniority :

Example 1 : « In cases of promotions,..., the skills, ability and efficiency of the employees shall be the governing factor and where these things are equal, seniority shall be the governing factor... »

Example 2 : « In the event of reduction of staff and rehiring of employees seniority shall apply provided the employée with the greater amount of seniority can satisfactorily perform the job he is assigned to, or can learn the job within reasonable time... »

These two provisions, illustrating the concept of contingent or modified seniority, are also an illustration of two subconcepts. Example 1 was indeed based on what could be called the concept ofequal ability, meaning that seniority will govern if there is equality in ability (and other factors, if any) to perform the job ; example 2 was based, on the other hand, on the concept ofsufficient ability, meaning that seniority will govern if the employee has sufficient ability to perform the job.

Fields of seniority recognition

3. The two provisions just cited also provided examples of areas where seniority would be taken into account — or what might be called « fields of seniority recognition ». Example 1 had to do with the problem of staff reduction and rehiring, while example 2 dealt with promotions. There can of course be other fields of seniority recognition : transfers, choice of vacation time, choice of working time, to mention a few. There is also the range of length-of-service related benefits such as graduated vacation plans, sick leave, etc., that one finds in collective agreements.

Seniority Units

4. A brief word should now perhaps be said about seniority units; in other words (and to proceed descriptively) one can have occupation-wide, department-wide, plant-wide, company-wide (in multi-plant company), etc., seniority units. Without wanting to go into too many details, our understanding of the seniority unit it the unit within which the years of service of the employee are considered : for example, an employee may have been fifteen years, in the plant, but only 7 years in department X of the plant. It could be stated, therefore, that such an employee has fifteen years' plant seniority, and 7 years' seniority in department X. These may be very important distinction since the seniority of the employee (together with other factors, depending on that the provision says) might be considered on a plant-wide basis in cases of lay-offs for example ; and his seniority might be considered on a department-wide basis in cases of promotions. One example will be provided here of the latter type of provisions, and one example of the former ⁵.

Enough has perhaps been stated at this point to suggest that seniority provisions can indeed be very important to employees : in terms not only of promotional opportunities, but also in terms of job protection, work satisfaction, etc.

Seniority provisions in a context of changing technology

Yet when we read a seniority provision, we always tend to place it — perhaps as should be done — in the world of work of 1970, which is one of fast changing technology. In relation to this very point, and before concluding, a few questions will be raised.

When a seniority clause provides that « in cases of promotions,... the skills, ability and efficiency of the employees shall be the governing factor and where these things are equal, seniority shall be the governing factor... » some questions are raised in our minds and these questions are simply submitted here for consideration. In a context of a changing technology resulting in new skill requirements, what would be the real meaning of « equal ability » as between senior and younger employees, in organizations where senior employees — set in their habits and perhaps in skills in need of updating — would be competing for promotion with younger employees freshly graduated from recognized institutes of technology and science, and mastering the knowledge required for an effective performance in those jobs open for promotion ? Furthermore, in these situations, what would be attitude of an employee's organization towards changes in technology, an organization whose membership might be considered « senior » in terms of length of service ? Or, what would be the attitude of an employees' organization with a younger membership towards displaced older employees ? And what would be the attitude of management naturally — as it should — preoccupied with efficiency ?

CONCLUSION

These were some questions that we had wished to raise by way of conclusion. It is hoped that it has been demonstrated in this article that to discuss collective agreements and seniority provisions is not to be involved in theoretical dissertations. Collective agreements and their seniority provisions, as well as their other provisions, are not only close to and part of, the work lives of hundreds of thousands of Canadians. They can also have an impact on the total of their lives.

* The remarks contained in this article, are derived from a statement made by the author to theInstitute on Collective Bargaining of theRegistered Nurses' Association of Ontario (Toronto, November, 1968), are personal in nature and do not necessarily reflect the views of the Canada Department of Labour of which, at the time of the presentation of this statement, the author was an officer, nor do they necessarily reflect the Pay Research Bureau of which since July 1, 1969, the author is Assistant-Director (Research).

1Importance of Collective Agreements in Canada — an address to the Richelieu Club of Hull (Que.), by Félix QUINET, January 16, 1968, pp. 3-4.

2 This figure is quoted fromImportance of Collective Agreements in Canada — an address to the Richelieu Club of Hull (Que.), by Félix QUINET, January 16, 1968, pp. 3-4.

3 It might perhaps be in order to suggest here that collective agreements may also make contributions in equally important contexts as that of the response to technological change. To illustrate this point, a couple of questions might be raised : When employees with a grievance realize that the complaints which they make are studied closely by an impartial arbitrator, because of the collective agreement, will these employees not have a very concrete and practical concept of the working of justice ? Is it unrealistic to believe that it is possible for a grievance procedure within a collective agreement applying to teachers, to facilitate in certain cases, the examination of questions which are intimately bound up with the salutary but delicate exercice of academic freedom ? Furthermore, is it far-fetched to think that, in certain cases, the workings of collective agreements concerning teachers could offer a concrete idea of the nature of academic freedom ? In our opinion, these are some of the unquestionably positive aspects of collective agreements that do not seem to receive their fair share of attention from the public to-day.

4 In this respect, it has often been argued that the ability of employees to transfer seniority-related rights and benefits from one bargaining unit to another would be encouraging a higher degree of labour mobility. It should indeed be borne in mind that an employee might think twice before moving to a better paid job and/or to a job more in line with his ability, if by moving, this employee would lose all seniority-related rights and benefits accumulated over the years.Straight seniority ; contingent or modified seniority

5 Example of seniority provisions on :

Promotion : « In promotions, below supervisory level, preference shall, subjected to (paragraph 1) be given to employees having the longest continuous services in the department concerned >.

Lay-off : « Subject to (paragraph 1) layoffs and recalls will be the basis of

relative length of continuous service with the Company >.