PRESENTATION NOTES—Employment Contracts Workshop

EMPLOYMENT CONTRACTS WORKSHOP

2014 Staff Education Forum

February 13, 2014

Ingersoll, Ontario

Brian Burch, info@coactionsa.org

1.    INTRODUCTIONS

Welcome everyone to today’s workshop.   I’m Brian Burch, the  executive director of CoAction Staff Association and a shop steward/union rep with Labourers Local 183. I assume that most of   those here know each other but just in case, would people introduce   themselves.

2.    WORKSHOP OVERVIEW

I’m not going to be able to deal with everything related to the CoAction model contract or contracts for co-op staff more  generally. But I hope   to provide a basic overview of employment contract law, give people an realistic overview of the process  through which the model contract was negotiated, touch on some of the major features of the model contract and weave in some thoughts   on negotiating a collective agreement.  I encourage people to ask  clarifying questions along the way but I do intend to have a question and answer session later in the workshop where more  substantive questions can be raised.

I hope that people are familiar with the CHFC publication You, Your  Staff and the Law.   This provides information on the minimum legal  expectations of co-operatives as employers.   Minimums can often be below standard expectations, but do provide a foundation from which contracts can be built on.  This, and other helpful material, can be found at:  http://www.chfcanada.coop/eng/pages2007/resources_coop.asp

To help frame any discussions or information sharing I have a few questions that I’d people to take five minutes or so to answer.  These are on a worksheet provided and are, I hope, straight forward:

What do I want to make my workplace better?

What are these things I want in my workplace that could be included in a contract?

Which of these things that could be included are already in my  contract?

What are those things I don’t have that I would consider a priority to include in any new contract?

3.    WHAT IS AN EMPLOYMENT CONTRACT?

Before one talks about employment contracts, it is important to make sure you are an employee. Most co-op staff are employees, either directly hired or through a management services company.  Some people provide specific professional services, such as bookkeepers, and aren’t seen as employees. Entering into a service contract, such as CoAction has with Ganesh Community Development     Co-operative, is based on a different form of relationship than 43rd Co-op has with me. There are people in employment situations who are treated by their employer as self-employed contractors but who are legally employees and therefore entitled to all the benefits of employment including the submitting of statutory payments such as CPP premiums to the Canada Revenue Agency and having a safe and secure working environment.

The Ontario Ministry of Finance offers the following:  “A contract of service, or employer-employee relationship, generally exists when a worker agrees to work for an employer, on a full-time or part-time basis, for a specified or indeterminate period of time, in return for wages or a salary. The employer has the right to decide where, when and how the work is to be done.”   (from:  http://www.fin.gov.on.ca/en/bulletins/eht/0196.html)

Thus, any agreement with an employer that sets rates of pay, controls the place where the work is done and that gives authority  for someone who determines the nature and quality of the work to be  performed makes one an employee. These agreements can take many  forms, both formal and informal.  Almost anything that can be included in a contract can be negotiated.   There are exceptions to this—formal collective agreements make reference to this using   language similar to the following (from a Unifor contract in Toronto) :  “it is the exclusive function of the Co-operative to:  …Manage the Co-operative without restricting the generality of the foregoing, to plan, direct and control operations, facilities,programs, systems and procedures, to direct and determine job      descriptions for the Employees, and each of them, to determine the   complement, organization, location and curtailment or cessation of      operations and to exercise all other rights and responsibilities not specifically modified elsewhere in this Agreement. “  At the end of the day, there are reserved management rights that can be  modified by mutual agreement but not removed.

In essence, you are an employee if you are paid, your employer controls the location and time of work, your actual duties are assigned and at the end of the day someone exercises the rights and  duties of management over your work life.   Many of us have  management responsibilities but it is ultimately the board of the co-op that has the authority.

As soon as we have any sort of agreement with a co-op to work we have entered into a contract.  We accept a consideration—pay—in return for our labour.    There are common law and legislative requirements that bind both the employer and employee that exist even if not written down.  Even if not written down in an negotiated contract, employers have to provide a safe and secure work place and employees have to come to work and fulfil their expected duties.

There are minimum expectations in any employment contract oral or  written.   These include:

– rates of pay and benefits provided

– vacation and leave

– probation period

– discipline and termination

– reporting relationships

– duties and responsibilities, which includes hours of work, issues such   as confidentiality and returning property and passwords when leaving employment

There are matters not included in a minimum list of expectations but are commonly included in employment contracts.   These include:

– non-competition clauses.  If one works for a management service  company, for example, this is likely in your contract.    With such a clause a co-op can’t end a contract with a management services company and then immediately hire the staff assigned to the co-op by the company.

– copyright and creative property.  An example of this is a form you develop for your co-op.  In most circumstances, if you develop iton the job this is the property of the co-op and you can’t take it with you nor can you share it without the express consent of   the co-op.   A clause that recognizes joint copyright of any creative work you do would mean you could take the form with you when you change employers or use it in other settings without express consent of your co-op.

Pre-employment expectations:

Prior to actually being hired or as a condition of being hired background checks are being required.   Historically this has been reference checks but in more recent times this has included police background checks and   even credit checks. Contracts and offers of employment often do include the requirement of a successful background check.   Balancing privacy and human rights concerns with the desire of an employer to have an employee they feel they can trust is a difficult one.  As an example, the Ontario Human Rights Code prohibits discrimination on the basis of a criminal conviction for which as pardon has been received.  Background checks will often reveal convictions, even if a pardon has been granted.  Depending on the crime, some boards would not hire based on the result of the background check even it violates the code.  (see:       http://www.ohrc.on.ca/en/code_grounds/record_of_offences)

4.    NON-CONTRACT OPTIONS

While any agreement is a contract, we tend to use that term to mean  a formal negotiated agreement.   There are other forms of agreement we may be familiar with that deal with matters such as rates of  pay, reporting structures and so forth.  Two that I know that are  common in co-ops are:

– Letters of employment

– Employment Policies

I’ve included a sample letter of employment, available on the CHFC  website. There are long serving staff who have this as their only employment agreement.   It is a very bare bones document but does include most of the items found in more complex, negotiated contracts; It has four basic sections:  (the letter can be found with the staff resources on:       http://www.chfcanada.coop/eng/pages2007/resources_coop.asp)

–     Basic Terms of the Agreement

–     Salary and Benefits

–     Work hours and vacations

–     Termination of employment.

Can people identify something common in most contracts that isn’t       included in this letter?

A key thing missing from the agreement is a dispute mechanism.    Problems arise in any workplace and having a way to resolve them short of dismissal is important for both parties.

The sector does have model polices and by-Laws dealing with issues such as  workplace harassment which are very helpful and I encourage all co- ops to adapt.   However, they are documents of the co-op and are not necessarily mutually agreed to by staff and board.  And such policies and documents deal with big issues and not day to day  issues such as differences around the scheduling of time off.

Model Workplace Harassment and Discrimination By-law (2002)

Policy on Workplace Violence and Harassment (June 2010).

The second is a policy dealing with preventing and responding to violence and harassment in the workplace to help co-ops in Ontario meet the   requirement of the Occupational Health and Safety Act.

The sector documents can be found in the member section of the CHFC     website:  http://www.chfcanada.coop/eng/pages2007/res_forms.asp

Information on the Occupancy Heath and Safety Act can be found at:

https://www.labour.gov.on.ca/english/hs/pubs/ohsa/

A good management side presentation on contracts can be found at:

http://managingtheworkplace.com/03-28-2013.html

5.    COLLECTIVE BARGAINING VRS MODEL CONTRACT

I’m not sure if housing co-op staff unionising is a GTA phenomena or if it exists elsewhere in the province.   Is anyone here in a  unionised workplace?  About 20% of CoAction’s members are also members of unions.  In the GTA there are co-op housing staff represented by Unifor, Labourers 183, Christian Labour Association of Canada and CUPE Local 1281.

One real advantage to a collective agreement is in the enforcement of the contract.   With an employment letter or a personal contract  the enforcement of the contract lies with you.  Because it is a party to the contract, the responsibility for enforcement is carried by the union.  Staff associations provide support for their  members—sometimes including some paid legal advice and always   including peer support—but the staff association isn’t a party to the contract.

I’ve included for information in the handouts folder a copy of the contract for 43rd Housing Co-op.   We are a unionised workplace.  There are a number of key areas, many similar to that in the Letter of Employment, and some specific to a unionised setting.   Union dues, for example, and seniority are not part of standard letters  of employment.  However, all employment contracts deal with pay and performance expectations.

The first seven articles and the last article are, in essence, the basic terms of the agreement.   They set out the responsibilities  of all parties and the length of the contract.

Articles eight through ten deal with discipline and termination.    What is included in the union contract that is missing in the letter is a dispute mechanism.  Problems can be dealt with through formal and informal steps internal to the co-op.

Article eleven does introduce a new idea—seniority—that is something in most union contracts.   Courts take length of service into account in   dealing with matters such as service pay and damages upon dismissal, which is different from length of service in terms of addressing particular work place issues such as who is laid off first.

Articles twelve through twenty-one and twenty-four and twenty-six       deal with salary and benefits.

Articles twenty-two, twenty-three, twenty-five and twenty-seven   deal with seniority, hiring and lay-offs.

6.    CHFT/COACTION MODEL CONTRACT

– Process

The CHFT/COACTION model contract is an interesting  experiment. It was an effort to find common ground between competing law firms, the local federation and a staff association on how to protect the rights of co-op staff while ensuring co-ops continue to be strong, member run entities.   It took approximately two years to negotiate and, although it needs some updating, still serves as a good basic employment agreement for co-op managers and    co-ordinators, particular in single staff settings.

The basic steps were:

–    Getting CHFT on side

–    Confirming the active participation of lawyers who represent the majority of Toronto housing co-ops

–    Seeking input from CoAction members are what to include and what not to accept.

–    Drafting and redrafting proposals to meet different perspectives

–    Reaching Agreement

Getting CHFT on side was easy.   An earlier model contract, available through the Co-op Housing Bookstore, was in need of  substantive updating.   Co-ops were seeking a model contract that had already been vetted by their lawyers, thus avoiding legal fees while ensuring that co-op boards were taking    employment matters seriously.   The sector as a whole was wanting to have a    reputation as good employers.  And there were federation funds available to pay the co-op lawyers who participated in the process as representatives of housing co-operatives.

Getting two completing law firms to co-operate was a somewhat more difficult task.   Part of this was the different philosophical approaches to employment contracts.  One firm had a more minimalist approach, seeing the need for only basic terms and conditions in an agreement.  They also felt that if there was a   significant workplace problem that the best approach was to    negotiate a finance settlement and part ways.  The other firm had a completely different approach.   They wanted detailed contract that addressed most foreseeable workplace issues from a strong  management rights perspectives.  However, both firms wanted to   be able to provide their clients with a workable model agreement that wouldn’t require much work to meet the needs of individual       co-op employers.  Working out a process with the lawyers was   somewhat difficult and evolved over time.   Ultimately, instead of both firms submitting responses to an issue as was first tried, for most of the process one firm drafted a response and the other responded to it.

CoAction member consultations were extensive and ongoing.  What was clear from the beginning was that our members themselves have different view of their role in a co-op.   Some saw themselves as employees;  others saw themselves as equal stakeholders in the co-operative; some saw their roles as being the equivalent of a CEO.  Finding common ground among co-op               staff wasn’t as easy as it might have appeared at the beginning of the process.   There was less difference on RRSP payments, for example, than on management rights with some wanting strong  restrictions on what boards could do while other members felt that co-op housing member control needed to be encouraged and supported.

There is also a problem that never was addressed—the model contract is for managers/co-ordinators only.  It requires substantial work to be adapted for other positions.

The drafting and redrafting of the proposals was a four sided initiative, although CHFT did not make many suggestions other than Tom Clement pushing for higher RRSP contributions than were originally proposed.  CoAction would draft a section, send it to our lawyer for review.   The revised draft would be sent to the first sector lawyer to draft a response.   That revised response would be sent to the second sector lawyer for review.  That revised version would go to CoAction to review and, if necessary, start the process up again with the newest version.  This sounds more complicated that it was.   Often the hardest part was getting      a document from one lawyer’s desk to another.

– Content

In the folder is the guide and contract in one package and the appendices in a second.  The guide, contract and appendices are meant to be treated as one agreement.

The guide is as essential part of the document.  It deals with options and interpretations of the contact, as well as serving as an introduction on how to use the model contract.  It is particularly important to note the recommended process for changing  from existing agreements to the use of the model contract.

The contract itself is not much different in form than the  employment letter, although it does include a dispute mechanism,   and is fairly short.

It contains:

–    Basic Employment Terms (articles one through five)

–    Performance of Duties (articles six through ten)

–    Supervision (articles eleven through fifteen)

–    Payments and benefits (articles sixteen through nineteen)

–    Hours, Vacation, etc. (articles twenty through thirty-three)

–    Administration of Contract (articles thirty-four through thirty-eight)

–    Complaints and dispute mechanism (articles thirty-nine through forty-three).   Note that this does not include the right to grieve termination, which is found in a union contract.

–    Termination (articles forty-four through forty-six)

–    Other provisions (articles forty-seven and forty-eight)

The shortness of the contact does reflect, in some way, the  preference of one of the legal firms.  It does touch all the  essential basics.   It also refers to a far larger set of documents—a series of essential appendixes that are key to   making the agreement work.   Starting with A and going through EE are the building blocks for making the model contract a living document:

A:    Job Description and Related Information

B:    Start Date of Employment

C:    Ethical Conduct and Confidentiality Agreement by Manager

D:    Staff Liaison, Staff Advocate, Board Directions

E:    Performance Review

F:    Manager’s Salary

G:    Benefits

H:    RRSP

I:   Expenses

J:    Hours of Work and Overtime

K:    Taking Time Off and Holidays

L:    Vacations

M:    Medical Leave

N:    Bereavement Leave

O:    Jury Duty

P:    Manager’s Entitlements During Leave

Q:    Continuing Education

R:    Personnel Records

S:    Confidentiality of Personnel Information

T:    Health and Safety

U:    Personal Use of Co-op Property

V:    Claims Against Manager

W:    Violence, Harassment and Discrimination

X:    Complaints

Y:    Manager Complaints about this Contract (Grievances)

Z:    Discipline

AA:   Alternative Dispute Resolution

BB:   Termination of Employment by Co-op

CC:   Effects of Termination of Employment

DD:   Changing this Contract

EE:   Miscellaneous

7.    QUESTIONS?

Are there other questions directly related to your workplace?

8.    EVALUATION

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