The Court of Appeal recently confirmed the rights of parties to a collective agreement to negotiate their own test for exclusion from the bargaining unit.
The Court’s judgment flowed from an arbitration award of Vince Ready, who was asked to interpret the parties’ collective agreement to determine if certain employees who were traditionally included in the bargaining unit should be excluded from it. The collective agreement outlined various factors that should be considered with respect to exclusions which were broader than those delineated in tests outlined in the BC Labour Relations Board’s jurisprudence on exclusions. Arbitrator Ready considered both the factors outlined in the collective agreement and the jurisprudence of the Board and determined that Masters (on all but minor vessels), Senior Chief Engineers, Chief Engineers, Senior Chief Stewards and Chief Stewards should be excluded from the bargaining unit as a result of their management functions.
The union appealed Arbitrator Ready’s decision to the Labour Relations Board and later filed a petition for judicial review of the Board’s decision to uphold the award. The union was unsuccessful at judicial review and appealed that decision to the Court of Appeal.
The Court of Appeal’s judgment confirms that parties to a collective agreement can agree upon and formulate tests to define the scope of their bargaining unit, provided that such tests conform to the policies of the Board. The essential policy of the Board is the requirement for an arm’s length relationship between the employer and the union. The Court held that the Board, in its role in reviewing decisions of arbitrators on exclusions, should be given a high level of deference in determining whether parties’ agreements on exclusions fall within Board policies.