A past practice can always be changed or eliminated if the employer and union agree in writing to change or eliminate the practice. Management`s actions – or inaction – may amount to accepting a previous practice. If the responsible management is aware of the practice and agrees with the practice or allows the practice to continue, this meets the requirement of this element. Depending on the type of practice, the practice must exist for a sufficient period of time. The duration of a practice depends on what it is. If a practice occurs frequently, the time required would be shorter. If the practice occurs rarely, the period should be longer. One concept that is often overlooked or misunderstood in industrial relations is that of “past practice”. It is an invaluable tool for enforcing the rights that caregivers may have that are not explicitly stipulated in the collective agreement.
In the case of an established and legal previous practice, the employer does not have the right to unilaterally change that practice. By its very nature, this practice has become an unwritten part of the Treaty. It informs the union during collective bargaining that it will end this practice in the next agreement. A practice is unlikely to be permissible if it has occurred irregularly or sporadically over the years or, conversely, if it has occurred repeatedly, but for a very short period of time in unusual circumstances (i.e. The hospital is under construction and free parking will be provided for a period of six months to relieve congestion). Be sure to check your contract for any wording that may limit the use of past practices for complaints. Example: For many years, workers were allowed to queue at the clock after the first ring, meaning there are still five minutes left before stopping. A new boss says no one can stand in line until the termination bell rings. The union has a good example of past practice. Management cannot pretend that it did not know that workers were queuing up after the first bell.
In this case, since management has never done anything to stop this practice, it indicates acceptance of the practice. A legitimate practice in the past is enforceable, as is any written article or provision of the contract. Therefore, the union can force the employer to adhere to a previous practice that benefits the employee, even if it is not explicitly written or the contract is silent on the subject. Arbitrators will recognize and uphold past practices in good faith if they can be proven and established, even if the contract states that a claim must constitute a breach of the written agreement. However, the burden of proof is on the union to confirm and validate the practice. The union should research and document the existence of the practice as much as possible. Before approving the existence of a previous practice, workers should always review the written terms of their contract to determine whether they contain language that would affect their ability to successfully advance the argument. In the case of the American Symphony Orchestra, useful language was available and the challenge was successful. Another rule is that the practice can be terminated by either party during negotiations after the agreement expires. All both sides have to do is state during negotiations: “We will no longer adhere to this practice.” However, if you do not make such a statement, the subsequent contract is silent and the circumstances remain the same, the practice will continue and be binding for the duration of the next agreement. Independent past practices may be terminated by management for the following reasons: Who constitutes responsible management may become a key issue, depending on the type of practice.
A practice that concerns only the unit of a single supervisor and that is in no way derived from the collective agreement may be approved or tolerated by the supervisor of that unit. A practice that changes the meaning of a collective agreement can only be accepted by management at the level at which the collective agreement was signed. A past practice is a long-standing frequent practice that is accepted and known by the union and management. A practice that meets the standards of a true prior practice is considered part of the contract. As part of the contract, complaints can be filed if management violates a previous practice. In most cases, management cannot end a previous practice without first negotiating with the union. In some cases, management may have to wait until a contract is negotiated to change a previous practice. 4. Both the union and the employer were aware of this practice and accepted it. It is a key element that the practice is repeated. If the break is daily, witnesses must testify to this.
While consistency refers to the type of practice, repetition refers to the number of breaks. Finally, if there is a past practice that management wishes to change or eliminate, it may submit it to a proposal in future negotiations on a successor contract.