Collective Bargaining

When will Governments learn – Collective Bargaining is a constitutional right!

Many say we have come a long way in labour relations in Canada since the adoption of the Canadian Charter of Rights and Freedoms. This charter gives all Canadians the freedom of association, and by extension, the right to join a union, have a collective voice, and ultimately the right to collectively bargain.

But in reality, have we progressed very far?

In the mid 1960’s Jean Lesage, the Premier of Quebec stated, “the Queen does not negotiate with her subjects.” That sentiment that public sector workers did not have the same rights as private sector employees was common in that era.  This sentiment continues in the 21 century, where Canadian Provincial governments continue to infringe on the rights of public sector workers, while judges continue to rule in favour of upholding the Charter of Rights and Freedoms.

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The story behind this infringement of collective bargaining rights goes back four years to 2012 and the passing of Bill 115 – Putting Students First Act.

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Click Here to Read Bill 115

Bill 115 was a legal slight of hand employed by the Ontario Liberals. The Ontario Liberals did not want to pass back to work legislation as they knew that may be considered illegal. So what did the Government do? They imposed a new collective agreement on the teachers unions and when you have a current collective agreement the union does not have the right to strike. Effectively, the government forced the teachers to go back to work without passing legislation to take away that right.

An interesting twist to the story is that once the collective agreements were in place, the Ontario Liberals repealed Bill 115. Ultimately, it was just like it never existed. Since the teachers were now bound by a collective agreement, the union had no right to strike.  It was a very clever move by the Liberals, but it did not stand up to a court challenge.

In effect, the Ontario Liberals felt they were above the law. It took four years, but it has been ruled that Bill 115 was an abuse of power and that it was illegal.

Public sector labour relations are very complex. Trying to balance public budgets, safety, and services is not an easy tasks. Governments must learn to respect that most public sector employees have the right to freely collectively bargain which includes the right to picket and strike.

Discussion Question:

  1. After reading and researching Bill 115, discuss what type of strain the Bill has placed on labour relations between the School Boards, the Government, and the Teachers Unions.

What’s in a Name?

Disputes often arise from good intentions gone wrong.

Source: Paul Lemon/Shutterstock
Source: Paul Lemon/Shutterstock

In a recent case, the Prairie North Health Region (PNHR) tried to amend its practice for employees wearing name tags.   The change was to have the full name (first and last), job title, and picture of the employee on an identity badge, rather than just the employee’s first name.  As noted in the article, the purpose of implementing this change came as a result of the employer wanting to promote a patient first philosophy and to equalize the balance of power between patient and health care provider.

Click Here to Read the Article.

The union representing the workers, CUPE Local 5111, disagreed and filed a grievance in order to stop this change in practice.  The grievance, as noted in the article was based on several grounds, with the allegation of violation of employee privacy as the primary concern. The matter was not resolved internally.  As a result, the dispute went to arbitration for a final resolution imposed by a three-party panel of arbitrators.

The arbitrators’ decision fell on the side of the union.  The employer had to rescind the new policy and had to implement new cards showing only employee first names, job titles along with a photo.

Click Here to Read the Case.

As you will note, this case is extensive.  It shows the amount of critical detail, witnesses, testimony, legislative impact, evidence of past practice and presentation of other precedent setting cases required in order for this matter to be resolved through a board of arbitration.  It was definitely a costly exercise for everyone involved.

Clearly, our names and our right to protect our own personal privacy has value.

One wonders, however, how much the value of good intentions truly cost all of the parties in this case.

Discussion Questions:

  1. Who would benefit from employees wearing name tags with first and last name?
  2. Why do employees, in this case, have a ‘greater’ right to privacy than patients?
  3. What elements of this case would prevent it from being resolved within the applicable grievance resolution process?
  4. Why, do you think, a case like this would proceed to arbitration?
  5. What lessons would you take from your reading of this case?

 

Good Faith vs. Bad Faith

Nothing seems to drive a collective bargaining process into the ground more than the perception that one of the parties is not playing by the rules.  A key principle, that is enshrined in the legal process of collective bargaining, is the concept of bargaining in good faith.

It is, in fact, more than just a concept.

When parties agree to bargain in good faith, they agree to honour the rules that they make with each other before the bargaining process even begins.  These mutually agreed upon rules include items such as how communication will happen to each of the parties’ respective constituencies and, in the case of public sector bargaining, how information will be communicated to the public at large.  The setting of the ground rules between the parties is as serious as the content and the issues that are discussed at the bargaining table.  Setting the ground rules for bargaining is part of the legal environment and processes that enable fair, honest, and open negotiations to take place.

As with all kinds of rule based settings, when one of the parties appears to be breaking the rules or does not seem to be playing by the rules, the other party gets upset.  When this happens, the other party typically reacts in a negative way, which is not a surprise!  Suddenly, the issues at the table take second place, as the negotiations process stalls and hostile allegations of bad faith bargaining start to take hold.

This seems to be the case as the collective bargaining process continues to unfold in the education sector in Ontario.

Click here to read the article.

What makes this particular bargaining process more complex is that there are three parties at bargaining table: the government, the union, and the provincial association representing public school boards.  Resolutions to these types of allegations and bargaining processes are never easy.  Hopefully, all of the parties will be able to see their way through the layers of complexity and conflict in order to find a way to negotiate and to honour the bargaining process between them.

Discussion questions

  1. What was the agreed upon rule that appears to have been broken?
  2. What are the possible implications of filing a claim of bad faith with the Labour Board?
  3. Why is the issue of communication so important to each of the parties in this process?
  4. As a member of one of the bargaining teams, what steps would you take to resolve these allegations?