In the unionized workplace, the implementation of artificial intelligence isn’t just a management decision — it’s also a bargaining issue.
“Just don’t assume you can quietly roll AI out, because it’s something to which the unions are paying attention,” says Lisa Stam, managing partner at Springlaw Professional Corp. “And that’s important, because unionized workplaces often lead the charge on new standards.”
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The Canadian Union of Public Employees, for example, already has an online tool encouraging its members to conduct AI impact assessments and negotiate protections. The flashpoints are working conditions, job reclassifications and losses, automation, discriminatory outcomes and privacy considerations.
Many collective bargaining agreements restrict employers’ ability to make unilateral changes affecting working conditions. These clauses frequently require employers to provide advance notice of new technology that impacts the workplace and mandate some form of consultation. The use of AI that involves electronic monitoring or performance evaluation is also a trigger.
“Even when the [agreement] has no express privacy rights clause, unions can rely on employees’ implied right to personal privacy,” Stam says.
If AI issues arise close to the expiry of the agreement, they become bargaining issues. But if they arise mid-term and consultations don’t produce an agreement, the parties will likely have to solve their differences through the grievance procedure.
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Employers tend to rely on management rights clauses to assert their right to implement AI. These clauses aim at allowing management to control the likes of hiring, work assignment, scheduling and workplace policies. But the precise wording of management rights clauses is key: while some are broad, others restrict management’s discretion.
“Employers try to make AI changes fall within the management rights provision to avoid it being governed by new technology or privacy clauses,” Stam says.
To succeed on the management rights argument, she explains, employers will have to demonstrate the company’s AI introduction was reasonable and that it doesn’t undermine the agreement or the union’s role. But even employers who succeed on the management rights argument based on their current agreement should expect vigorous negotiation on AI when the agreement expires.
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“Expect union bargaining over whether AI tools can be used at all, when consultation or notice is required, the transparency and comprehensibility of algorithms, and worker control over data.”
The upshot is that unionized employers should be thinking about AI implementation now, she adds. “Get ahead of AI policy demands when bargaining, assess the impact of any new tools, especially on classification, duties and wages. and stay compliant with the agreement and privacy laws.”
And because misinformation feeds much of the controversy around AI in the workplace, employers should be proactive in explaining what’s really happening.
“Train the management team and the union representative in what AI changes mean and be very transparent in doing so to help avoid misunderstandings,” Stam says.
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