In a unionized workplace, a union and an employer may come to an
agreement as to the job duties and qualifications for various
positions, in an attempt to avoid future disagreements. This is
exactly what has occurred in nursing homes in New Brunswick. The
Canadian Union of Public Employees ("CUPE"), the New
Brunswick Association of Nursing Homes Inc. and the Government of
New Brunswick Department of Social Development formed a tri-parte
task force to conduct a Joint Job Evaluation for each CUPE position
within the nursing home sector to determine the key job functions
and qualifications for each position.
Despite this detailed process and apparent agreement between the
parties as to the job functions and qualifications for each
position, a dispute arose as to whether an individual nursing home
had improperly relied upon job criteria which differed slightly
from that set out by the Joint Job Evaluation.
In Carleton Manor Inc. v. Lewis (December 8, 2014,
unreported), the grievor alleged that she was the senior qualified
applicant for the position of Activity Director and that the
employer had failed to award her the position. The employer and the
local union had agreed on a job description for the position of
Activity Director that differed somewhat from that established by
the Joint Job Evaluation. Two candidates applied for the position,
one of which was the grievor. The employer interviewed both
candidates and determined that neither candidate satisfied the
minimum educational criteria for the position.
The union argued that the grievor satisfied the job criteria for
the position of Activity Director, as established by the Joint Job
Evaluation, and that the employer and the local union did not have
the ability to modify the job criteria. However, the collective
agreement provided that the individual employer and local union
were able to modify the job criteria, by way of mutual agreement,
so long as the New Brunswick Association of Nursing Homes Inc. was
provided with a copy of the agreed to job criteria. Accordingly,
the Arbitrator concluded that the employer and the local union had
agreed to the job criteria (a copy of which had been provided to
the New Brunswick Association of Nursing Homes Inc.). The evidence
further established that the grievor did not satisfy the specific
qualifications for the position which had been agreed to. The
grievance was dismissed.
What This Means For Employers:
In a unionized environment, the employer's management rights
will generally provide the employer with the authority to establish
the qualifications for positions, so long as the criteria are not
arbitrary, unreasonable or discriminatory. As such, employers
generally have broad discretion in determining the qualifications
for positions within their organization.
However, the general right of an employer to establish job
qualifications may be limited through collective bargaining. As in
the situation discussed above, the collective agreement may
specifically provide how job qualifications will be determined.
If the union and the employer agree to the job qualifications
for a position, the union will subsequently be unable to succeed
with an argument that the criteria relied upon by the employer in
its assessment of candidates was flawed, so long as the criteria
are not arbitrary, unreasonable or discriminatory.
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.
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