For many Ontario employers, the prospect of entering into collective bargaining for the first time can feel like navigating uncharted waters. Whether the result of a recent union certification or organizational changes that now bring a workplace under a bargaining regime, first-time negotiations are a pivotal moment. They can set the tone for a long-term relationship with the union, shape the business’s operational flexibility, and impact the organization’s financial commitments for years to come.

What Is Collective Bargaining?

Collective bargaining is the process through which an employer and a union negotiate the terms and conditions of employment for a group of employees. These terms are eventually codified in a collective agreement: a legally binding contract that governs everything from wages and benefits to working conditions, scheduling, seniority, grievance procedures, and more.

In Ontario, collective bargaining is governed by the Labour Relations Act (LRA). This legislation sets out the rules for union certification, the duty to bargain in good faith, and the procedures for resolving disputes. Once a union is certified to represent a group of employees (known as the bargaining unit), the employer is legally obligated to engage in collective bargaining with that union.

The Certification Trigger: When Bargaining Becomes Mandatory

For many employers, the requirement to bargain begins when a union has been certified by the Ontario Labour Relations Board (OLRB). Certification may arise through a representation vote, automatic certification, or voluntary recognition. Once certification is granted, the employer and the union must begin bargaining in good faith with the goal of reaching a first collective agreement.

Importantly, the duty to bargain arises quickly, often before an employer has had time to fully process the implications of certification. It is therefore essential that employers act promptly to prepare for bargaining once certification becomes likely or confirmed.

The Duty to Bargain in Good Faith

Under section 17 of the LRA, both the employer and the union are legally required to “bargain in good faith and make every reasonable effort to make a collective agreement.” This duty does not compel either side to agree to specific proposals, but it does require honesty, transparency, and a genuine intention to negotiate.

For employers, this means more than simply showing up at the bargaining table. It includes:

• Providing relevant and timely information about proposals;
• Responding to union offers in a considered way;
• Refraining from surface bargaining or stalling tactics; and
• Avoiding direct negotiations with employees during bargaining.

Failing to meet these obligations can result in an unfair labour practice complaint before the OLRB, which may impose remedies ranging from orders to resume bargaining to automatic first contract arbitration.

Pre-Bargaining Preparation: Laying the Groundwork

Preparation is critical to successful collective bargaining, especially for employers new to the process. Employers should begin with a comprehensive internal audit of employment practices, compensation structures, benefits programs, policies, and workplace norms. Understanding what is currently in place and how it compares to industry standards will help form the basis of the employer’s bargaining position.

Employers should also determine which items are negotiable and which are non-negotiable due to operational constraints, regulatory requirements, or budgetary limitations. At the same time, it’s important to maintain some flexibility to allow room for compromise.

In most cases, it is critical to retain legal counsel with experience in labour negotiations to help with strategy, drafting proposals, and managing legal compliance. In complex or sensitive negotiations, retaining a professional negotiator may also be prudent.

Setting Objectives and Priorities

An effective bargaining strategy begins with clear objectives. Employers must ask themselves what they want to achieve, what they can concede, and where they must hold firm. Common employer goals in first-time negotiations may include:

• Preserving managerial rights and operational flexibility;
• Limiting cost increases tied to wages, benefits, or overtime;
• Establishing performance expectations and discipline processes; and
• Ensuring clarity in job classifications and work rules.

Employers should prioritize their objectives to distinguish between “must-haves” and “nice-to-haves.” Attempting to bargain every issue with equal weight can dilute the employer’s bargaining power and make negotiations unnecessarily protracted.

Understanding the Union’s Role and Tactics

A union’s role is to advocate for the interests of its members, which often means pushing for improvements in compensation, job security, working conditions, and procedural protections. In first-time agreements, unions commonly seek to standardize terms and eliminate at-will arrangements that permit unregulated managerial discretion.

Employers should be prepared for tactics that include anchoring proposals at high levels, issuing public statements, mobilizing employee support, or applying pressure through job actions or grievances. Remaining professional, calm, and focused on the facts is key to withstanding these tactics without damaging the relationship or breaching legal duties.

The Importance of Communication with Employees

During collective bargaining, the employer is still permitted to communicate directly with employees, provided that the communication is not coercive, threatening, or intended to undermine the union’s efforts. Employers can share facts, explain proposals, and respond to misinformation, but should avoid making promises, engaging in reprisals, or interfering with union activities.

Clear and consistent communication is especially important in the context of first-time bargaining, where employees may be uncertain about the process or anxious about change. Framing bargaining as a constructive dialogue, while reinforcing the employer’s commitment to fairness and transparency, can help build trust and reduce workplace tension.

Bargaining Sessions and the Exchange of Proposals

Bargaining typically proceeds through a series of meetings between the employer’s bargaining team and the union’s representatives. Proposals are exchanged in writing and discussed in rounds of negotiation. While it’s common for positions to start far apart, the process is designed to bring the parties closer together through compromise and dialogue.

The employer’s proposals should be clear, lawful, and internally consistent. It is advisable to prepare model contract language and anticipate union objections or counter-proposals. Each session should be carefully documented, with notes kept on key discussions, agreements, and pending issues.

What If No Agreement Is Reached?

Despite best efforts, some first-time negotiations fail to result in a collective agreement. If bargaining reaches an impasse, either party may request the appointment of a conciliation officer from the Ministry of Labour, Immigration, Training and Skills Development. If conciliation fails, the parties may proceed to a legal strike or lockout after a 17-day waiting period, provided certain conditions are met.

To avoid this outcome, the LRA allows for first contract arbitration in certain cases. If the union alleges that the employer has bargained in bad faith or otherwise frustrated the bargaining process, it may apply to the OLRB for an imposed first contract. This remedy is rarely granted without strong evidence, but it underscores the importance of engaging in genuine and legally sound negotiations from the outset.

Implementing and Managing the Collective Agreement

Once a collective agreement is reached and ratified, the employer’s focus must shift to implementation and administration. All supervisors, managers, and HR staff should be trained on the terms of the new agreement to ensure consistency and compliance.

It is essential that the employer adhere strictly to the agreement’s provisions, particularly in areas involving discipline, scheduling, seniority, and grievances. Even well-intentioned deviations can result in costly arbitration proceedings or undermine labour relations.

Employers should also establish internal protocols for managing grievances and tracking the performance of the agreement over time. This data will be invaluable in preparing for future rounds of bargaining.

The Critical Role of Experienced Legal Guidance

First-time collective bargaining is one of the most significant legal and strategic events an Ontario employer can face. It touches every aspect of the employment relationship and can carry long-term operational and financial implications. Employers must not only understand their legal obligations under the Labour Relations Act but also develop a thoughtful, goal-oriented approach to negotiation.

Working with experienced labour counsel can make the difference between a successful first agreement and a prolonged, disruptive conflict. Counsel can help employers navigate the process, understand the rules of engagement, and safeguard their rights while maintaining a constructive relationship with the union.

Whether you’re preparing for first-time bargaining or responding to recent certification, it’s never too early to start building a strong foundation for your labour relations strategy.

Grosman Gale Fletcher Hopkins LLP: Toronto Labour Lawyers Representing Ontario Employers in Collective Bargaining

Entering collective bargaining for the first time is a pivotal moment for any Ontario employer, and professional guidance can help you navigate each step with confidence. The skilled labour lawyers at Grosman Gale Fletcher Hopkins LLP provide strategic advice on certification issues, bargaining preparation, proposal development, negotiations, and the implementation of first collective agreements. If your organization is approaching first-time negotiations or requires support at any stage of the bargaining process, contact us online or call (416) 364-9599.