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.

Click Here to Read the Article

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An interesting twist to the story is that once the collective agreements were in place, the Ontario Liberals repealed Bill 115.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.

Tactics and Timing

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?

Swan Song for the Public

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?

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?