This article helps HR professionals and labour relations stakeholders understand the concept of past practice and its potential impact on collective agreement interpretation.
What This Clause or Topic Usually Covers
Past practice generally refers to the established practices or customs in a workplace that have developed over time. These practices may not be explicitly written in the collective agreement but can influence how certain terms are understood or applied.
In many cases, past practice serves as evidence of how parties have interpreted or implemented agreement provisions in the past. It may be considered alongside the written agreement when resolving disputes or clarifying ambiguous language.
Common Misunderstandings
- Some agreements may not formally recognize past practice as binding, yet it can still influence interpretations.
- A common misunderstanding is that past practice automatically overrides the written terms of a collective agreement.
- Some agreements distinguish between implied terms and explicit contract language, affecting how past practice is weighed.
- Some parties may assume any repeated workplace custom qualifies as past practice, though it often requires consistency and mutual recognition.
- Some agreements may limit the duration or scope of past practice considered relevant.
How This Is Typically Interpreted in Practice
- Identify whether the practice in question has been consistently applied over a period.
- Determine if both parties (employer and union) were aware of and accepted the practice.
- Assess whether the practice conflicts with or complements the written terms of the collective agreement.
- Consider whether the practice has been formally challenged or changed in recent negotiations.
- Use the past practice as supporting evidence when interpreting ambiguous or unclear clauses.
Example Scenarios
Example A: A workplace has routinely allowed employees to take short breaks beyond what is specified in the contract. This practice has been accepted by management and the union for several years.
Example B: An employer has consistently assigned overtime work in a certain order, which is not detailed in the collective agreement but has been followed without dispute.
Example C: A union claims a certain benefit based on past practice, but the employer argues the written agreement does not support it and the practice was informal and inconsistent.
What to Check in Your Agreement
- Whether the agreement explicitly mentions past practice or workplace custom.
- Definitions or clauses related to implied terms or practice evidence.
- Any limitations on the duration or scope of recognized past practices.
- Procedures for raising disputes related to past practice.
- Language regarding the precedence of written terms over unwritten practices.
Ask CBAIQ About Your Agreement
CBAIQ can help clarify how past practice may be interpreted within the context of your specific collective agreement.
This is general information only. Always refer to your specific collective agreement and applicable local rules.