SEBA President
SEBA Chief of Labor Relations ,
M. Eagleson
SEBA Senior Field Rep, C.Wright

JANUARY 2004

PAST PRACTICE:

In recent weeks there has been some discussion as to what constitutes a "past practice" and what it actually means to the association.

First, the definition is that a past practice is an existing, generally long-standing, practice which is sanctioned by the department and the association by it's actual "use and acceptance" and isn't something that is already included in the MOU. However, once it is a long-standing practice that is accepted by both parties, it becomes what is known as a bone fide practice and is considered to be part of the MOU.

What has been the general complaint is long-standing practices have been ended by management without the knowledge or permission of the association.

There are several different conditions enunciated which must be met to make it a valid past practice. Some of these are as follows:

• The practice must have existed for a long time, as in years, not months.
  
• It must have been considered a condition of employment affecting the working conditions. It must be a condition of employment that is subject to bargaining.
  
• It has to have occurred repeatedly, as in something that happens every year on a holiday for the last 10 years, or a way of bidding on a schedule for the last 5 or 6 years. The longer the practice, the stronger the past- practice.
  
• The management must be aware of the practice or events without terminating it, thus implying consent. The association must also be aware of it and have allowed it to happen.
  • There are several types of past practices, but generally they are categorized into three areas.
    
  • Contractual - Clarifying the contract: Practices that have been used when the contract language is vague or general. Therefore the practice defines what the contract actually means.
    
  • Non-Contractual - Activities taken for granted: Practices that have continued without interruption, which an employee would consider a "benefit" cannot be terminated unless for the following reasons:

  o There is a significant change in the original condition which started the practice such as cost;
  o If there is significant ongoing abuse by the employees of the practice; or
  o If they notified the association during negotiations that they are going to end the practice during the next contract.

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