The labour contract proposed by management of the Chronicle Herald contains language that could be used to kill the union at Canada's oldest independently owned newspaper, legal experts say.
The paper's 61 newsroom staff walked off the job nearly a week ago. The Halifax Typographical Union has said the paper refused to budge on its contract proposal, despite wage cuts and other concessions proposed by workers.
CBC News has obtained a copy of the management's offer, sent to union members on Dec. 30.
It changes job security to "an aspiration rather than a right," said Jula Hughes, a University of New Brunswick professor who specializes in labour law and has reviewed the offer.
"I can't tell you what would happen, but I can tell you that the employer certainly would have the ability to fundamentally move from being a unionized to a non-union workplace," Hughes said.
Money struggles top of mind
Management could hire contractors or brand new non-union employees to do the work of union members. It's language that Hughes said she has never seen.
"It's difficult to predict how much of that work would continue to go to members of the bargaining unit," Hughes said. "As a result, it would be very difficult to predict what the size of the bargaining unit would be — if any — going forward."
The Chronicle Herald has repeatedly said it faces financial problems and needs concessions, including cuts to wages and staff. Talks between the two sides have failed.
Neither Nancy Cook, vice president administration, nor Mark Lever, president and CEO, have replied to interview requests for this story.
This isn't the first time employers have tried to put outsourcing in a contract, Hughes said, and there's been plenty of rhetoric around "efficiency."
"There's no question that this is a big deal," she said. "I'm not optimistic of what that means to that labour situation."
Hiring flexibility helps employer
New Brunswick lawyer Kelly VanBuskirk, who often represents management in labour and employment cases, said he agrees the proposed collective agreement could let managers pick and choose who's in the union.
"From an employer's perspective, the flexibility that this proposed wording would provide is quite attractive," VanBuskirk said on the phone from Fredericton.
"It's certainly a far reach. It's a clause that would be beneficial to the employer."
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The exact intent of the clause is unclear. The Herald's lawyer, Grant Machum, turned down an interview request.
Machum's website profile said he represents Atlantic Canada's largest companies, "successfully advising employers on operating union free for over 20 years."
The Herald has said it wants to move newsroom page layout and design to a non-union hub that also deals with magazines, weekly papers and advertising products. But whether it intends to use this flexibility to replace all staff with non-union workers is unclear.
Companies look for cheaper labour
VanBuskirk said the clause would allow the company to "shrink the amount of work that's done within the bargaining unit, likely for the business benefits," with the goal of lower wages, fewer benefits and pensions.
The "most significant conclusion" possible, he said, is the bargaining unit could be turned into an empty shell, with work being done by non-union employees.
While he said he's never seen such overarching language, most modern contracts allow outsourcing to some degree and changes to pensions and benefits to save money.
"Frankly, there has to be some flexibility," VanBuskirk said.
Halifax labour lawyer Ron Pizzo calls the language "highly unusual," and said, "I can't imagine that this type of bargaining will necessarily be replicated anywhere else."
As a result, he said he has advised the union on what it could mean.
"I've never seen a negotiation like this before," Pizzo said. "It's really the ability to say who's in and who's out of the bargaining unit, if that's what the employer means. To unilaterally decide that — that is very unusual and it's problematic."
Read the management's non-monetary contract proposal
Read the management's monetary contract proposal