Collective agreement drafting is presently a non-specialist field, and lack of drafting skill leads to lack of clarity. When I read a collective agreement, I look for the rules that structure my workplace or the workplace of a friend. I look for clear rules, well defined exceptions, and reasonable structure. I find most of these things in most agreements, but I have to look.
Dipping into labour arbitration shows me how complex these rules can get. Brown and Beatty’s Canadian Labour Arbitration is filled with chapters on collective agreement interpretation, where rules are not clear enough. Labour lawyers and union representatives know the pain of these disputes, yet, when I speak with some lawyers, I am subtly informed that there is a way of doing things in the labour world. There is a way of speaking and a way of writing.
There sure is, and the back-and-forth that takes place around the bargaining table can be frenzied and very emotional. Both sides are negotiating a future – and it has to be good enough to ensure industrial peace. For all this pressure, though, the language of many collective agreements remains opaque to an average reader.
The way things are done is, in my admittedly limited experience, a euphemism to efface errors made in the heat of negotiations. These errors are often unique, but I categorize them into two camps:
- Overwrought, verbose language; and
- Useless text.
I will describe these phenomena with reference to collective agreements. The solution to both problems requires a paradigm shift in labour negotiations. Drafting by the parties at the table does not produce good collective agreement language. Each party has too much of a vested interest. A new model for collective bargaining leaves the parties to negotiate the substantive terms of their agreement while a professional drafter hammers out the text. In this way, parties can direct their energies to getting the terms right, while they have but to review the language to ensure that it captures the spirit of their agreement.
Overwrought, verbose language
Overwrought and verbose language occur when drafters unnecessarily complicate sentences, clauses, or articles. A typical legislative sentence proceeds subject-verb-object. Modifiers may be appended before or after this unit to create conditional rules or to qualify the rule. A complicated sentence will contain modifiers interjecting in the main unit. A complicated sentence will obtain from a run-on sentence, or a sentence with many qualifiers. Clauses or articles become complicated when conditions are repeated across many sentences. They are also weighed down by more basic syntax and grammar errors.
An example of these kinds of errors occurs in the agreement between . This agreement’s public holiday provision reads in part:
To qualify for payment for the holidays listed in 10.1.1, employees must have worked their last scheduled workday prior to the holiday and their first scheduled workday after the holiday. Employees who are absent from work on either or both of these days, but are in receipt of basic wages from the Company, and employees who are absent from work on either, but not both of these days and are in receipt of Workers’ Compensation Board benefits for that day, shall be entitled to the holiday pay. Employees who are not in receipt of wages and are absent from work on either or both of these days due to circumstances considered by the Company to be beyond their control shall be entitled to the holiday pay.
This paragraph defines entitlement and creates a list of exceptions to entitlement rules. This list is framed as a series or conditions that lead to entitlement even though the (Employment Standards Act) criteria are not met. Full sentences are used to enumerate each condition when a simple list would do:
Employees absent from work on their first scheduled workdays prior to or following on qualify for holiday pay listed in article 10.1.1 when they
- receive basic wages from the Company;
- receive workers’ compensation benefits; or
- are absent from work due to circumstances that the Company considers beyond their control.
Each enumerated condition creates the same right to holiday pay. An employee absent before or after the holiday receives pay if she or he fulfills one of the conditions. Employees absent on both days must fulfill the trigger condition because they have missed one or the other workday. The relevant information is communicated in a concise article.
My hypothesis to explain overwrought and verbose language in agreements boils down to parties being carried away by the emotion and pressure of labour negotiations. Verbosity is often due to confusion; confusion may be engendered by emotion. Meetings at bargaining tables are often emotionally charged events. Parties draft accordingly.
Though this example does not permit us to deduce or infer too much about collective agreement drafting, it does suggest a better approach to drafting. This logic game is misconstrued for negotiation. Hashing out contract language is an important element in any legal relationship. It remains, however, a job best left to third-party specialists. These types will bring clarity and stillness to an emotional task, thus reducing chances of error.
Useless text occurs when parties insert statements that do not create or define rules. It also occurs when parties insert references to statutory obligations.
When these conditions obtain, the collective agreement is weighed down by language that isn’t doing any legal work. Their inclusion inhibits comprehension by forcing the reader to understand the agreement’s legal context. This context is not of immediate value in most cases; it becomes valuable in arbitration, when statutory law is pled to interpret the agreement.
Consider the agreement between Sunnycorner Enterprises and the Canadian Union of Skilled Workers, which opens with a standard preamble:
1.1 WHEREAS the Employer is engaged in construction industry work in the electrical power systems sector on Ontario Power Generation or Bruce Power property and may enter into collective agreements covering those of its employees in the bargaining unit as hereinafter defined; and
1.2 WHEREAS the Union, as defined in the covering page of this Collective Agreement, has in its membership competent, skilled and qualified journeymen and apprentices to perform work coming with the trade and craft jurisdiction; and
1.3 WHEREAS the Employer and the Union desire to encourage closer co-operation and understanding between the Employer and the Union to the end that a satisfactory, continuous and harmonious relationship will exist between the parties to this Agreement.
These paragraphs do very little work. A reader even remotely acquainted with the parties will know the first two paragraphs’ contents. The third paragraph is arguably an operative provision. It indicates the parties’ intention to readers. Alas, however, section 2 of the Labour Relations Act supplies this recital and more besides. All the interpretative language exists in the enabling statute. Readers and arbitrators don’t need the parties’ help, and the agreement can be shortened.
Restatement of statutory obligations is again found in more specialist agreements. The agreement between the Service Employees International Union Local 2.ON and Labatt Breweries contains a classic example of this flaw:
3.01 The Company confirms its intention to continue to comply with the terms of the Operating Engineers Act and all other statutes regulating the operating of equipment and machinery used in the Company plant at London, Ontario.
Two problems exist. The most alarming issue is the implicit suggestion that a company can opt out of statutory law. Most statutes contain obligatory provisions. The second problem is that the Operating Engineers Act has been repealed for some twenty years. The Technical Standards and Safety Act, 2000 replaced this legislation. The agreement does capture other acts, but inclusion of defunct legislation suggests that dual standards, one adopted voluntarily from past legislation and another enforced by current law, exist. Removing reference to statutory law avoids this problem.
Whatever its form, useless text lengthens reading to no benefit. The reasonably well-informed reader does not come away with knowledge about precise obligations. Collective agreements are legal instruments. They exist to create clear rules. Any text that does not create, describe, or qualify a rule is unnecessary. (To be clear, bald references to statutes do not create, describe, or qualify a rule – they repeat a pre-existing obligation or permission.) Collective agreement drafting needs to move beyond these reminders and recitations.
Back to basics: the professional drafter
Most people I’ve encountered don’t want to delve into the intricacies of labour drafting, nor should they. Drafting is a specialist’s field because it requires an interest in language, language’s logical expression, and the legal backdrop of labour relations law.
The closest analogy to a professional collective agreement drafter is, of course, legislative drafters, for which Canada is well-known. These professionals create laws and regulations; collective agreement drafters create the same instruments for workplaces.
I have not encountered specialized collective agreement drafting on my journey through labour relations. It would be nice to see these professionals become a reality.