WRITING COLLECTIVE AGREEMENTS
IN PLAIN LANGUAGE
by
David C. Elliott
Edmonton, Alberta
(Revised 1998)
[This paper was first presented to the 8th Annual Labour Arbitration Conference, in 1990.]
1
Contents
Purpose of this paper
Acknowledgements
PART 1: THE READABILITY TEST...... 1
The Flesch readability formula
Why I used the Flesch formula
What I applied the test to
What do the scores mean
PART 2: THE SCORES...... 2
General comments
Seniority article
Discipline article
Grievance article
Conclusion
PART 3: IMPROVING COLLECTIVE AGREEMENTS...... 4
What do I mean "improving" collective agreements?
Why is it worth the effort to write clearly?
- It is efficient
- It is economic
- It improves understanding
PART 4: HOW TO WRITE COLLECTIVE AGREEMENTS
MORE CLEARLY...... 5
Communication
Organization
Headings
Short sentences
Paragraphing
Choosing the words
How to change
Last words
Appendix 1Flesch readability chart...... 11
Appendix 2A short bibliography...... 12
1
WRITING COLLECTIVE AGREEMENTS
IN PLAIN LANGUAGE
Purpose of this paper
In the United States, the United Kingdom, Australia, New Zealand, and the European Community there is a growing interest in writing legal documents clearly. It is all part of a growing interest in making sure words convey the message that the writer wants them to convey.
But the plain language movement has not touched collective agreements, or has it?
This paper examines some Alberta collective agreements, tests them against the Flesch readability formula, compares the results with United States tests, and suggests some ways of improving the clarity of collective agreements.
Acknowledgements
I acknowledge with thanks the help David Facey gave me in applying the readability formula to the collective agreements I randomly selected.
Thanks also for the permission granted to me by Harper and Row Publisher Inc., New York, to use the readability chart in Appendix 1. It is taken from How To Write Plain English: A Book for Lawyers and Consumers by Rudolf Flesch.
PART 1
THE READABILITY TEST
The Flesch readability formula
The Flesch readability formula is a tool for checking how easy or difficult documents are to read. The formula measures the average sentence length of a document in words and the average word length in syllables. Putting those two numbers into an equation gives a result showing how a text rates on a readability scale from easy (100) to virtually incomprehensible (0 or less). Appendix 1 shows the readability scale I used.
Rudolf Flesch developed his formula in the 1940's. Since then, with some changes, it has often been used to test a variety of documents.(1)
Why I used the Flesch formula
I used the Flesch formula to test 30 Alberta collective agreements because the formula is well recognised and easy to apply. It was also used to test 196 United States collective agreements in 1984.(2) The Alberta results are easily compared with other jurisdictions.
What I applied the test to
From a random selection of current Alberta collective agreements I tested the first 100 words in seniority, discipline and grievance articles. A score was recorded for each article tested and a mean score calculated for each of the articles and overall.
What do the scores mean?
To put the readability scores in context:
A score of 90 - 100 means very easy to read. Something like a comic strip.
A score of 70 - 90 means easy to fairly easy to read.
A score of 60 - 70 is regarded by the Flesch formula as plain language.
A score of 50 - 60 means fairly difficult to read - the Calgary Herald and Sun score in this range. The Herald scored better (easier to read) than the Sun in the 3 pieces tested.
A score of 35 - 45 means difficult to read. Maclean's magazine scores in this range.
Less than 30 is classed as very difficult to read. The Ottawa Law Journal and Osgoode Hall Law Review fitted in this range.
A minus rating means the writing is virtually incomprehensible - several articles of the collective agreements had minus scores.
PART 2
THE SCORES
General comments
Of the Alberta collective agreement articles tested, the mean score was 28.367 - very difficult to read.
Comparison: In comparison, the US study (which also tested the seniority, discipline and grievance articles) gave a mean score of 25. A 1951 study of 20 collective agreements in the US gave a mean score of 27.4.
There were no discernable writing trends in the Alberta collective agreements. Some collective agreements contained both the most difficult to read articles and the easiest to read.
Nor were there any significant trends showing that particular industries, sectors, employers, or unions wrote more or less understandable collective agreements than others.
Seniority article
The worst score for the seniority article was -3.7 (11.6)(3) the best score 52.2 (47.5). A mean score of 30.922. Difficult to read.
Comparison: The US study gave a mean score of 25.7 for the seniority article.
Discipline article
The worst score for the discipline article was -44 (7.9) the best score 54 (45.6). A mean score of 31.687. Difficult to read.
Comparison: The US study gave a mean score of 25.2 for the discipline article.
Grievance article
The worst score for the grievance article was a horrendous -122 (.68) the best score 62.13 (43.7). A mean score of 22.492. Very difficult to read.
Comparison: The US study gave a mean score of 24.2 for the grievance article.
Conclusion
The inevitable conclusion is that Alberta collective agreements are poorly written, difficult to understand, and need improvement.
The problem is simply this: writers write collective agreements until they get to the point that they understand what they have written.(4) They do not take the extra step of revising the text so that the ultimate reader will understand what has been written.
It is this next step that converts a document from being a technically correct document into a document that is technically correct and understandable.
PART 3
IMPROVING COLLECTIVE AGREEMENTS
What do I mean "improving" collective agreements?
I mean writing collective agreements so that they can be more easily understood.
I mean getting rid of unnecessary and archaic language. I mean getting rid of tangled mind bending streams of words.
I mean breaking up the text:
- into short sentences
- creating organised paragraphs
- making informative headings
- creating better organization within the document.
In short, I mean writing with the reader in mind.
I do not mean that every negotiating session can create crystal clear language. Nor do I mean that longstanding hard fought articles, or articles that have been the subject of arbitral awards or judicial decisions, can be easily rewritten.
But much can be done without treading in sensitive areas.
Why is it worth the effort to write clearly?
It is efficient
Writing plainly means time saved for both writer and reader. Obviously if the central message of an article in a collective agreement comes through clearly the reader will grasp what is being said on a first reading instead of the third or fourth.
Saving time for the reader happens not just once but each time the agreement is read by each person reading it. Cumulatively, the saving of time is staggering. And of course time saved can be put to other productive use. Plain language creates a more efficient, effective, and productive working environment.
It is economic
Saving time inevitably means saving money. If unnecessary words in collective agreements are eliminated the bulk of a collective agreement would be reduced between 5 - 50%. With a consequential cost saving.
It improves understanding
The United Kingdom House of Lords said about legislation
absence of clarity is destructive of the rule of law; it is unfair to those who wish to preserve the rule of law; it encourages those who wish to undermine it(5)
The same can be said for absence of clarity in collective agreements. Accepting that there will be times that neither side wants clarity, an improvement in the clarity of other articles in collective agreements can only benefit everyone affected by them or having to interpret them.
Negotiating collective agreements can be tough. So many resources and so much effort is poured into negotiations yet so little effort is put into creating an understandable product of the negotiation.
It is time to adjust the balance.
PART 4
HOW TO WRITE COLLECTIVE AGREEMENTS MORE CLEARLY
Research has helped
30 years of research into how you and I understand what we read has been turned into suggestions for how to write clearly. The following suggestions apply to all official writing, as well as collective agreements.
Communication
First understand that the written word is as much a form of communication as the spoken word. When we talk to someone we usually aim to tell them something - we make our verbal pitch in words that will be understood. Do the same with the written word - use ordinary expressions and language and your writing will be better understood.
Organization
Careful organization of written texts really helps understanding. A logically organised agreement, with related issues grouped together, helps lead the reader from one issue to another without leaps in logic that are difficult to follow.
A good organization will help reduce or eliminate cross references from one article in a collective agreement to another. If you find a need to constantly cross reference it is a good indication the organization of your document could be improved.
Headings
Headings can be very helpful if they are informative. They can be used to create a table of contents. If collective agreements are divided up into appropriate parts, tables of contents would become a more helpful tool for understanding. For the most part, tables of contents are little more than a chore to wade through. Instead of offering information at a glance, it has to be discovered.
Short sentences
Short sentences are easier to understand than long ones. And the information in short sentences is more easily retained than information in longer ones. Research shows that our minds comprehend shorter sentences more quickly than longer sentences. We should use that knowledge.
There are times when short sentences don't work - what then? Make a list. Making a list gives out information in digestible chunks. Not in one indigestible hunk.
With a few word changes look how breaking the text up improves the following article:
The original / The revised versionGRIEVANCE PROCEDURE
In the event that a grievance arises between the employer and the Union on the one hand or the employer and one or more employees on the other hand, regarding the interpretation, application or alleged violation of this Agreement, such grievance shall be settled by way of one of the following procedures of settlement, as applicable: / Grievance procedure
If a grievance arises between
(a) the employer and the Union, or
(b) the employer and one or more employees,
about the interpretation, application or alleged violation of this Agreement, the grievance must be settled by using one of the following procedures:
(Note that the simple rewriting saved 14 words - 25% text less to read.)
Paragraphing
I know how I feel when turning to a page that is one solid block of unparagraphed, untabulated text. It is uninviting, boring, difficult to read, complicated to untangle.
When counsel waste time by reading long stretches of judicial or arbitral decisions during arbitration hearings, I wonder if it is because the text looks so dense that they do not expect anyone else to read it.
Lawyers are notorious for long sentences but there is no reason for them.
Break up the text, put in some headings, and the "look" of the page improves dramatically.
Choosing the words
The centuries old stranglehold lawyers have had on the language of the law is slowly breaking down. Lawyers have started to change the way they write, and to ask for advice from experts in language. Writing courses for lawyers and law students are starting.
But the legacy of legal language and years of neglect, the ignorance and the lack of interest in writing clearly will be with us for decades. It has a firm grip on collective agreements.
How to change?
(i) / think - Poor writing is an addiction - how can you kick a bad habit? Like any bad habit changing old habits takes some time and work.(ii) / read - Appendix 2 contains a short bibliography. Any of those books will stimulate an interest in writing clearly, and help break bad habits.
(iii) / write - There will be no change unless you put into practice the principles of plain language. Start today.
Here are some suggestions:
(1) using one word instead of a phrase. For example
Instead of / Tryat that point in time / then
by virtue of / by, under
in the event that / if
subsequent to / after
for the period of / for
Notice how the alternative word is immediately understandable. The phrase tends to be ponderous and lacks immediate clarity.
(2) purging archaic words
Hereinbefore, hereinafter, hereunder, said, aforesaid, aforementioned and the like are wasted words. They do nothing but take up reading time and clutter the text.
(3) word order
How strange it is that most legal documents have to state an exception before saying what it is that the exception relates to. You know
"Except for ..., this is what happens ..."
Why should the words be arranged in this order? Why do we force readers to keep in mind an exception before they know the rule?(6) Writing this way makes even less sense when we realise that inevitably the reader must read the section at least twice - once to find out the rule and then to apply the exception to it.
If the exception followed the rule a more natural and understandable approach would result. An approach designed to help the reader.
(4) Must we continue with "shall"?
Lawyers and those who write agreements have a fixation about writing in the future tense and using the word "shall". But times are changing. "Must" means the same as "shall" and is now used in legislation, both in Alberta and elsewhere.
If collective agreements were written in the present tense "shall" would often not be needed. When a "shall" is needed, try "must". It improves the tone of the agreement and has the same legal effect.(7)
The use of "must" also tends to avoid the confusion "shall" creates when it is unclear whether "shall" is used as a command to do something or as a direction to do something sometime in the future. The confusion inherent in the use of "shall" has been the subject of critical comment for over 140 years - we are slow learners.
The use of "must" and writing in the present tense will do much to improve the readability of collective agreements.
Here are a few examples of what happens when articles are rewritten in the present tense.
The original / The revised versionThe time limits expressed in the foregoing shall be exclusive of Saturdays, Sundays and statutory holidays and normal time off. / Saturdays, Sundays, statutory holidays and normal time off are not counted when calculating time limits in this article.
The Board of Arbitration shall not be vested with the power to change, add to, delete or amend the terms of this Agreement. / The Board of Arbitration must not change, add to, delete or amend this Collective Agreement.
All settlements arrived at shall be final and binding upon the Company and the Union and the employee or group of employees concerned. / Settlements are final and binding on the Company, Union and employees concerned.
(5) and/or
Every book about legal writing warns about the dangers of using "and/or". And for good reason.
Here is an example from a collective agreement:
Time off from work without loss of regular earnings may be provided on the following basis:
(a) The Grievor and/or one (1) Union Steward for time spent in discussing grievances with representatives of the Employer as outlined in the Grievance Procedure.
Does that mean- the Grievor and the Union Steward get time off with pay, or
- either the Grievor or a Union Steward get time off with pay, but not both.
"And/or" has been looked at several times by the English Court of Appeal and House of Lords. No definitive conclusion was reached about the meaning of the expression. But one piece of advice was clear - don't use the expression.(8)
Last words
This paper shows that collective agreements are poorly written and difficult to understand. The way to improvement is first an awareness of a problem. I hope this paper is a first step to creating that awareness.
A readability test is an imperfect guide about whether a problem exists. It helps to show how your writing stands up against an objective test. In the end it is only a guide. It can be manipulated to create a good score while at the same time making the text less clear. But using it, or one of the many computer software programs, gives a quick and easy assessment of writing - although the advice is sometimes hard to take!
The best advice is still: write with the reader in mind.
PS This paper scores 55 - 65 on the Flesch readability chart.
Appendix 1
(Copied with permission. Please see the acknowledgement on page 1.)