Locals in OPSEU SEFPO frequently come to agreements with Employers on the best way to implement Collective Agreement rights and procedures between bargaining cycles. This is a fairly predictable need – sometimes only when the parties are implementing a new right do they realize that it looks different from what they were expecting. The parties might then agree in a “Memorandum of Agreement” or “Minutes of Settlement” on the best way to do it. This is called an “ancillary document” to the Collective Agreement and is enforceable the same way (through a grievance). How long do these agreements last and what happens when the Agreement is silent on the length or a procedure to end it?
In Family and Children’s Services of Lanark, Leeds & Grenville and CUPE, Local 2577 (https://canlii.ca/t/gvg4d), Arbitrator Russell Goodfellow deals with this question when the Union and the Employer disagreed over the duration of a Minutes of Settlement. The parties had come to a Minutes of Settlement in 2013, during a Collective Agreement that ran from 2011 to 2015. There was no duration set out in the Minutes, and no mention of a way for either party to extinguish it. When negotiations for a new Collective Agreement began in 2015, the Union gave notice to the Employer that it believed the Minutes expired with the Collective Agreement and it did not intend to be bound by them. The Employer took the position that the Minutes continued beyond the Collective Agreement. The next Collective Agreement was eventually ratified and ran from 2015 to 2018. Neither party bargained about the contents of the Minutes in this Collective Agreement – but the Union subsequently filed a policy grievance and argued that the Minutes of Settlement ended with the expiry of the Collective Agreement; the Employer took the position that the Minutes of Settlement continued to be binding on the Union unless and until the parties bargained something new.
This question of duration is one has had some mixed interpretation across several decades and jurisdictions. Goodfellow reviewed this history in this decision, starting in 1990 with Eurocan Pulp & Paper Co. and C.P.U. Loc. 298 Re (“Eurocan #1”, https://canlii.ca/t/jmtcf). In Eurocan #1, a British Columbia Arbitration determined that a Minutes or Memorandum of Settlement was an “ancillary document” and like all ancillary documents would naturally expire with the Collective Agreement. But a mere eight years later in 1998 in an arbitration between the same parties (“Eurocan #2, https://canlii.ca/t/jmw7j), an Arbitrator modified the rule and determined that if the Minutes constitutes a bilateral agreement (as opposed to a unilateral declaration) of some importance to the parties, that is was “unlikely that either party would have assumed the unilateral right to say “the deal is off, or as here, “my obligation under this reciprocal deal is off – i.e., without having to raise the mater at the negotiating table in the ordinary way of collective bargaining.”
Amongst several other cases, Arbitrator Goodfellow also reviews a 2001 case in the federal sector (https://canlii.ca/t/jmw7j) in which the Arbitrator distinguishes the nature of agreement and the intention to be bound on an ongoing basis. Arbitrator Frumkim separates agreements that are interpretative in nature (those which clarify the meaning of a provision in the Collective Agreement) and agreements that create new rights or obligations under the collective agreement. Frumkin finds that an agreement on the meaning of a collective agreement was like “establishing how a particular provision of the then current collective agreement would interpreted and applied in successor collective agreements” and that it “took on the status of an arbitration award upon the manner of application of a collective agreement.” A Minutes of Settlement that altered or amended the rights and obligations under the Collective Agreement, however, would cease to bind the parties on the expiry of the Collective Agreement.
Arbitrator Goodfellow ultimately finds that there is a “modern understanding” of Minutes and Memorandums of Settlement: that when the parties reach agreements during a Collective Agreement, regardless of whether they are resolving a grievance, interpreting the Collective Agreement or adding to the Collective Agreement, there is a rebuttable presumption that it can only be amended by mutual agreement. Collective bargaining, he says, “is about change, not continuity, with the assumption being that all previous terms will continue unless amended, not that they will cease unless renewed.”
This ultimately means that one party cannot get out of a mutual agreement merely by giving notice that they do not intend to be bound by it anymore – even if that notice is given during bargaining.
Arbitrator Goodfellow determines that the question of duration depends on the demonstrated intention of the parties. The parties are generally assumed to have intended their agreements to survive until they specifically renegotiate them – this is, of course, unless there is evidence that the parties agreed to something different. This is what we call a “rebuttable presumption” – there is a presumption, but it may be rebutted if there is evidence that the parties mutually intended something different. The evidence would have to be about mutual agreement – it wouldn’t be that one party had their own view on the issue.
The best way to provide evidence that the parties intended to be able to extinguish the agreement is, intuitively, in the Agreement itself. When coming to an Agreement, consider the circumstances in which we would want to extinguish the Agreement; also consider the circumstances we would like to be in place if the Employer wants to end it. Getting to agreements, especially about contentious, difficult issues, that it seemed were impossible to agree on has a lot of exciting momentum; and often all the parties want to anticipate an agreement will be successful – nobody wants to think about how it ends or if it will simply collapse. However – contemplating how agreements can and will end is an important part of coming to the agreement in the first place; so we have to be cognizant, even when putting the agreement in place, that at some point it may not work as we anticipated. There are probably as many ways to end agreements as there are to start agreements but some of the most common are:
- The Agreement will expire with a collective agreement.
- The Agreement will expire on a particular date.
- The Agreement will expire with a collective agreement unless the parties agree it should be continued.
- The Agreement will survive the expiry of the collective agreement unless one of the parties gives notice to extinguish it
- The Agreement will expire with a certain period of notice by one of the parties.
It may make sense in different circumstances to use any of these, or any combination – but it is important to think it through from the start and make a deliberate choice.