Incorporation

In the most straightforward cases, it is obvious which terms of a collective agreement have been incorporated into the employment contract because the contract refers clearly and expressly to those terms. For example, the contract might state that rates of pay are governed by the terms of a particular named collective agreement, to be negotiated from time to time. This is known as express incorporation.

But sometimes the individual employment contract does not mention the collective agreement. In these circumstances, to be a binding contract term, the collectively agreed term must have been incorporated by implication, either through conduct, or through custom and practice.

Even if a contract of employment refers expressly to a collective agreement, it does not follow that all the terms of that agreement will be legally binding as between the employee and employer. Courts and tribunals will examine each term to decide whether it is “apt” (i.e. suitable) for incorporation.