Rethink labour relations: Report

‘Move away from deadline bargaining’ to reduce work stoppages
By Shannon Klie
|Canadian HR Reporter|Last Updated: 04/20/2009

Labour and management need to work together throughout the life of collective agreements to reduce the frequency and duration of work stoppages in the federal private sector, according to a dispute-resolution expert.

If labour and management discuss issues as they arise, instead of only once every three years, it will decrease the adversarial nature of labour relations and the likelihood of strikes and lockouts, said Peter Annis, a labour law lawyer and author of the public report Work Stoppages in the Federal Private Sector: Innovative Solutions.

“If you do diminish the adversarial nature of the relationship and you get the stakeholders into problem-solving and they see the collective agreement not as a contract to be fought over and enforced tooth and nail but, rather, as a living snapshot of the relationship that they have to work on throughout the whole period, then you will bring down (the number of work stoppages),” said Annis.

Canada has been given the dubious distinction of having the highest rate of “person days not worked” (PDNW) due to work stoppages from 1997 to 2006 among G-7 countries, and the second highest rate among the 30 member countries of the Organization for Economic Co-operation and Development (OECD), according to previous reports from the British Office for National Statistics and the OECD.

Last year, former labour minister Jean-Pierre Blackburn appointed Annis to uncover the causes and effects of work stoppages in the federal private sector (federally regulated employers excluding most Crown corporations) and provide options to improve the situation.

After eight months of consultations with labour and management representatives, as well as government representatives and industrial relations experts, Annis tabled his report. It found the federal private sector accounted for the highest relative contribution to PDNW in Canada.

“Some of this data really wasn’t available before. There was no breakout of the federal private sector. Nobody really knew,” said Annis.

Trying to pinpoint the causes of work stoppages is difficult because they are idiosyncratic, said Annis. However, he found some commonalities.

From 2000 to 2007, mergers and acquisitions played a role in 74 per cent of PDNW due to work stoppages. Also, the majority of PDNW since 2000 came from two or three major work stoppages per year, such as the Telus and CBC disputes in 2005.

“You get a few of these massive companies with major unions and a lot of employees and when they have a strike or a lockout, you really rack up the days,” said Annis.

The main issue with Telus and CBC was the use of contract workers, which directly affects the livelihood of unionized workers, said Pradeep Kumar, professor emeritus of industrial relations at Queen’s University in Kingston, Ont.

“These are fundamental issues that require a reassessment of the whole structure of labour relations,” he said. “We should have some kind of a mechanism where we can (continuously) talk about these issues where they relate to the fundamental operation of the enterprise, whether it’s contracting out, whether it’s concerning cost.”

Without such a mechanism, preferably internal and not external, the same issues will reappear at every negotiation, he said.

This kind of ongoing discussion involving employees, unions and management is common in Europe, said Kumar, and accounts for the lower number of PDNW in many European countries compared to Canada.

Another contributing factor to work stoppages, according to unions and data from the Federal Mediation and Conciliation Service (FMCS) of Canada — which provides dispute resolution and prevention assistance to federally regulated employers and their unions — is employers are asking for more concessions on flexibility, wages and benefits.

This has been happening for about 10 or 20 years, said David Cote, a Toronto-based labour lawyer with Cote and Company. Before that, it was only the union that came to the table with demands, he said.

“Now both parties are sending across the bargaining table their own individual set of demands that are inconsistent with the demands coming across from the other side,” said Cote.

Employers are making more demands because they are increasingly competing with companies based in countries that have very different attitudes toward unionization, such as China, India and even the United States, he said.

So Canadian employers are looking for more concessions on wages, benefits and flexibility to be able to compete with non-unionized companies and those with weak unions, he said.

Consultations lead to 17 options

Through his consultations, Annis developed 17 different options to improve relations between labour and management and to either prevent work stoppages or shorten their duration. He presented 12 “neutral” options, which didn’t favour either management or labour, to stakeholders on both sides and they reached consensus on three of the options.

The first option is the creation of a federal labour-management relations council, consisting of representatives from labour, management and the FMCS.

The council would allow for an ongoing discussion of policy options to improve labour relations and would report regularly to the Minister of Labour, said Annis.

The second option, which received wholehearted support from both sides, involves enhancing and promoting the preventive mediation program administered by the FMCS.

Suggestions include creating post-work stoppage workshops to help both sides deal with issues stemming from the labour dispute as well as pre-negotiation workshops to assist parties before and during negotiations.

“The concept is to move away from deadline bargaining,” said Annis.

Other suggestions include better promotion of the services available, as many employers aren’t aware of what the FMCS offers, as well as increased funding to ensure everyone who would benefit from the preventive mediation program has access to it.

While the notion of ongoing consultations and preventive mediation is a good one, employers aren’t going to voluntarily allocate time and resources to it because they know there isn’t the possibility of a strike until the end of the collective agreement, said Cote.

“I’d be more interested in proposals that would advocate mandatory participation,” he said.

The third option involves improving the timeliness and integrity of the Canada Industrial Relations Board’s decisions. Many of the issues raised by both sides have already been addressed with the appointment of Elizabeth MacPherson as the new chairperson and the creation of a management-labour advisory group, said Annis.