Employer

Tactics and Timing

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Playing chess is a game of timing, strategy, tactics, maneuvering, and movement. So too, is the process of negotiating a renewal to a Collective Agreement.

Chess pieces
Source: bikeriderlondon/Shutterstock

In the public sector, the ability to withhold services is a very powerful game piece that unions use in order to leverage their position at the bargaining table.  Typically, when contract discussions break down the parties are in either a full strike position (Union side) or a lock-out position (Employer side). The complete withdrawal of services in the public sector, through either a strike or a lock-out, can go a long way to force both parties to come to an agreement. However, it can also cause irreparable harm to the reputation and support that is very much needed by both parties from the taxpaying public.  When public sector unions go on strike, the most immediate impact is on the public that the sector serves. The risk of losing public support, as a result of premature strike action, is great.  As such, timing throughout the collective bargaining process for public sector unions  and employers is critical.  Both parties need to know when the right move needs to be made in order to continue the game to a successful conclusion.

As an observer, it is interesting to watch the current negotiations process taking place in the municipality of Toronto. CUPE Local 79 and the City of Toronto have continued to bargain beyond the strike/lockout deadline with updates provided through the media on the progress of these talks.

Click Here to Read the Article

One of the pieces that the union has played in this particular bargaining process is a ‘work-to-rule’ campaign.  This is a tactical move used to build pressure on the employer and, at the same time, one that should sustain support from the public.  Services are still being provided so that families served by daycare workers, for example, are not left to fend for themselves – at this point in time.

Whether or not this type of pressure is enough to push the employer to make a successful counter move remains to be seen.

Only time will tell how this particular game plays out.

Discussion Questions:

  1. Identify three key public constituents that might be impacted negatively by municipal workers going on strike.
  2. What are the benefits to the Union’s decision to implement a work-to-rule strategy rather than a full strike?
  3. What tactics could the Employer use to counter the impact of a work-to-rule campaign?

Promises Made, Promises Broken

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Simply put, the collective agreement is an employment contract.  As you will remember from your employment law studies, any employment contract that is formed between two parties, must have an offer, acceptance, and consideration in order for that contract to be enforceable.   In a unionized environment, each time the collective agreement is renewed through the legitimate process of collective bargaining, these principles of offer, acceptance, and consideration remain in play.  Once the parties have agreed to the terms of renewal, they have a contract between them.  Signed, sealed, and delivered.

Source: ALEXSTAND/Shutterstock
Source: ALEXSTAND/Shutterstock

The collective agreement is not a one sided ‘union’ contract that the employer can ignore.  It is a contract between two parties.  Nothing will harden and sour the relationship between an employer and a union more than the perception that the employer is ignoring the terms of a negotiated, settled, and accepted collective agreement.

Let’s look at this from a personal perspective.  If I agree to sell my house to a buyer, we negotiate the sale of the house and everything that is agreed and committed through a signed contract.  If that contract includes the agreement on my part to leave all of the window dressings in place, then I leave them in place!   I don’t take them with me or destroy them – That is not what I agreed to do.  If I do take them with me, I should expect a very unfavourable reaction from the other party because I have deliberately broken the contract between us. Actions are similar with collective agreement administration.  If the employer agrees to something during the life of the agreed upon contract, and then breaks that agreement, the union is going to react in a negative way.  This result should not be a surprise to anybody with the responsibility for administering a collective agreement.

Yet, it happens, as is discussed in the article, below.

Click here to read the article. 

It is easy to be an armchair critic and wonder why the employer, in this case, would have agreed to a commitment of no layoffs during the life of a collective agreement if they knew they could not afford it. We must remember that any contract negotiation is never straightforward and we have to live with the results.

What are the Human Resources lessons to take from all of this?  Effective HR planning and preparation for realistic implementation of a collective agreement is critical!  And, do not make promises you can not keep.

Discussion Questions:

  1. What types of terms could have been negotiated into this collective agreement?
  2. What could the employer have done differently in order to lessen the impact on unionized employees?
  3. Identify three specific pieces of information that an HR practitioner could have included as part of collective bargaining preparation?
  4. What steps would you advise the union to follow in this case?

 

Swan Song for the Public

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By the time this blog is posted, the Canadian federal election will be a thing of the past.  One of the more interesting moments that happened during the election campaign was the suspension of a Federal employee, Tony Turner, for writing a song about Prime Minister Steven Harper.

Mr. Turner provides his perspective on what happened in an interview with MetroNews.

As with many things that did not go as planned during the recent election campaign, the suspension of Mr. Turner received international media and extensive social media coverage.

The suspension brings forward very interesting questions about the employment boundaries that may or may not exist for employees in the public service.  They are employees of the federal government, which is led by the Prime Minister of Canada.  There is generally an accepted understanding that employees should not cause harm to or malign the reputation of their employer in the public domain.  In the case of Mr. Turner, does this mean that he should not have made his personal political opinions public? On the other hand, were his actions significant enough to merit a suspension from employment?

It is not surprising that the union representing Mr. Turner filed a grievance in this case.   As for the outcome, Mr. Turner retired from his work with the public service sector, which means that there will be no formal resolution to this grievance.

While we all know what the outcome to the federal election was, we will never know what the outcome for Mr. Turner through his union, would have been.

Discussion Questions:

  1. Should public sector employees be subject to disciplinary action for voicing or engaging in personal political activities?
  2. What advice would you, as the HR Practitioner for the Prime Minister’s office, give to the Prime Minister in this case?
  3. From the employer’s perspective, what specific factors merited disciplinary action against Mr. Turner?
  4. Do you think employees in the public service have a ‘higher’ duty of responsibility to their employer? Why or why not?

Arbitrators in Action

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Termination is a Risky Business.

There was a great deal of social media coverage surrounding the firing of a Hydro One employee who contributed to the sexist heckling of a news reporter, in the spring of 2015.  Many commentaries at the time included speculation as to whether or not the termination of this employee would stand.

Since the employee was represented by a union, the termination was grieved and it went to an arbitration hearing.  In this case, the arbitrator made the decision to re-instate the former employee back into employment with Hydro One.

It is interesting to note the slightly different perspectives that each media venue provides; for example,  watch the following coverage provided by Global News.

Click here to read the article.

The coverage includes the perspective of a union spokesperson providing their insight as to what the arbitrator took into consideration when making the determination for reinstatement.   It seems that the former employee’s genuine remorse and public apologies for his conduct were factors that had some influence on the resolution to this situation.  Having said that, we are not given information as to what the employer presented at this hearing, nor are we given information as to all of the facts that the arbitrator had to consider.

In a case such as this, the arbitrator’s decision is final.

What remains to be seen is how this decision will influence other cases in the future regarding the termination of an employee due to their own ‘off-duty’ conduct.

Discussion questions:

  1. Do you think employers in the future will terminate employees for similar off-duty conduct if there is a risk of reinstatement?
  2. Is the risk worth it in order to ‘send a message’ about acceptable social conduct?
  3. Do you agree with the arbitrator’s decision in this situation? Why? Why not?
  4. From a Human Resources perspective, what types of policies need to be defined clearly in the workplace about employee conduct?
  5. Identify two or three different media perspectives through internet links for this case. What are the differences in the messages from each media outlet?

Good Faith vs. Bad Faith

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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?