This article helps HR professionals and labour relations stakeholders understand the role of past practice in interpreting collective agreements and workplace customs.
What This Clause or Topic Usually Covers
Past practice generally refers to established workplace customs or behaviours that have been consistently followed over time, even if they are not explicitly written in a collective agreement. These practices may influence how certain terms are understood or applied in labour relations.
In many cases, past practice serves as evidence of implied terms or accepted workplace norms. It can be relevant in grievance or arbitration processes when parties seek clarity on how an agreement should be applied.
Common Misunderstandings
- Some agreements may not recognize past practice as binding or may limit its influence.
- A common misunderstanding is that any repeated behaviour automatically becomes an implied term.
- Some agreements distinguish between formal written terms and informal workplace customs.
- Past practice is often confused with unilateral employer policies.
- Some assume past practice can override clear written contract language, which may not be the case.
How This Is Typically Interpreted in Practice
- Identify the behaviour or custom that has been consistently followed over a period of time.
- Verify whether the practice is widely known and accepted by both employer and union representatives.
- Determine if the practice contradicts or complements the written terms of the collective agreement.
- Assess whether the practice has been applied without objection from either party.
- Consider the context and frequency of the practice to evaluate its relevance.
Example Scenarios
Example A: A workplace has regularly allowed flexible start times for employees despite no explicit clause in the collective agreement. This may be considered an established past practice.
Example B: An employer has provided certain safety equipment for years, although the collective agreement does not specifically require it. This could be viewed as an implied term through past practice.
Example C: A union and employer have consistently followed a particular procedure for shift changes that is not documented in the agreement but is recognized by both parties.
What to Check in Your Agreement
- Whether the collective agreement references or limits past practice.
- Definitions of implied terms or workplace customs.
- Any clauses specifying how disputes about practice evidence are resolved.
- Language about the precedence of written terms over unwritten practices.
- Procedures for raising objections to established 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.