Collective Agreement Restrictions and AI Transformation

With the beginning of the school year, I was fascinated to read that a private school in the UK has opened a ‘teacherless’ AI classroom.  Students are paying £27,000 a year for the program. The school is marketing the AI classroom as more adaptable to the students’ individual needs. Upon reading further, I learned that the classroom is also supported by three human “learning coaches” – at least one of which was a trained teacher. So, it appears that educators continue to have employment even in an AI classroom. Again, the robots are not taking over but are changing things.

This teacherless classroom example raises questions about an employer’s ability to fundamentally change how it delivers services and the impact on employees.  In the unionized environment, many collective agreements already feature technological change language.  For federally regulated employers, the Canada Labour Code codifies a process for introducing technological change that impacts unionized workers.  Technological change clauses typically do not restrict an employer from introducing changes. Instead, they address the impact on employees and focus on subjects such as the obligation to train employees on new technology, reassignment, or lay-off entitlements for workers whose jobs are eliminated or changed by technology.

Technological change clauses are not the only collective agreement provisions that may be relevant to introducing AI. Work of the bargaining unit clauses could also apply if work is redistributed due to new technology.  A recent case involving Bell Media illustrates this point.  The case is not about AI specifically, but there are parallels.

The grievance followed a work assignment change effective December 2019 relating to CTV News’ subscription to NBC News Channel, a content service. Before December 2019, Bell received NBC’s content by way of satellite transmission.  Distribution Service Technicians (DSTs), bargaining unit members, performed the work performed to receive that transmission at Bell.  Effective December 2019, NBC transitioned to Internet Protocol-based/Internet-based (IP/Internet) transmission and now provides its content to its subscribers, including Bell, through a third party, iNet/Videoship.  Part of this new process requires Bell to connect to iNet using a website on the internet.  Bell assigned the task of using this website to non-union Production Managers.

The collective agreement with Unifor, Local 79M had extensive bargaining unit work protections. There are pages of clauses broken down by the type of work performed by bargaining unit employees. The following are some examples:

ARTICLE 9

Jurisdiction, New Equipment and Methods

9.1  Only employees under this Agreement as provided hereinafter shall perform all the duties related to: the maintenance of the Company’s property; the preparation, administration, audition and the broadcast, rehearsal and preparation of the Company’s originated television programs, the operation, installation, set up, assembly, modification and maintenance of all equipment used, owned, rented, leased or obtained by the Company; or any equipment obtained in the future to replace or supplement such equipment.

9.2 Assigning Work – The Company agrees that it will not transfer or assign any work or functions covered by this Agreement to any other person, except it is agreed that the Company shall not be required to alter existing methods or practices where certain personnel occasionally perform some duties performed by employees in the bargaining unit. It is agreed that the provisions of this section shall not be used to avoid filling a vacancy or recalling an employee on layoff, or to cause a layoff of an employee in the bargaining unit, or to avoid the payment of overtime or penalties as stipulated in this Agreement.

9.4 New Equipment and Methods – In the event that the Company introduces or permits to be used, any process, machinery or equipment which substitutes for, supplements or replaces any present process, machinery or equipment being operated as of the date of this Agreement by employees within the bargaining unit, such process, machinery or equipment shall be operated and maintained only by employees within the bargaining unit herein set forth.

The decision describes in detail the process for receiving the NBC feed via satellite compared to the process of receiving it through the Internet. Both processes required very little time to complete. In the case of the satellite transmission, the technician was required to utilize a Quadra decoder. Internet transmission involves accessing a website.

Although this may be an oversimplification of the argument, essentially, the employer argued that the union’s jurisdiction was limited to the operation of the Quadra decoder and that the change to accessing a website meant the work was no longer within the bargaining unit.  Arbitrator Parmar disagreed.  She found that the extensive provisions in the collective agreement describing the bargaining unit’s work included managing the NBC feed, whether it was transmitted by satellite or the internet.  Further, the arbitrator found that it was irrelevant that the process took minutes to complete either way. The work was bargaining unit work, protected by the language of the collective agreement.

The issue in dispute in the Bell Media case was a few minutes of work a day managing a content feed. No employees lost their jobs. Some might say it wasn’t worthy of an expensive arbitration case. Others would argue that not disputing the change would pave the way for more reductions and reassignments of bargaining unit work. With uncertainty surrounding the introduction of AI in the workplace, we can anticipate unions vigilantly guarding their negotiated protections in collective agreements and proposing new protections at bargaining.

Returning to the teacherless classroom example at the outset of this article, in that case, the human work was changed from a “teacher” to “learning coaches.”  What if there were no learning coaches? Would the outcome of the Bell Media case have been the same if the work had been wholly automated without human involvement? These are the types of issues that will become the topics of labour disputes as AI becomes more and more prevalent in workplaces.  As lawyers, we look forward to working through the issues and advocating for our clients.  As employers, organizations must consider the employment and labour implications of new technologies, AI or otherwise, before implementation.