Determining Job Qualifications: Does a Union Have a Say?

June 17, 2015

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.

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