Collective bargaining is the cornerstone of any democracy and has been respected and supported by the Canadian government for decades, according to Buzz Hargrove, former president of the Canadian Auto Workers (CAW). However, recent moves by Ottawa — as seen with labour disputes at Canada Post and Air Canada — are threatening that process, he said.
“There’s no respect left for the collective bargaining process,” he said. “It’s about government coming in on behalf of employers and defending employers, almost guaranteeing they’re going to win the dispute…. It’s so anti-democratic, it’s so un-Canadian.”
But workers will respond, said Hargrove, speaking at the Ted Rogers School of Management at Ryerson University in Toronto in October, where he is external director of the Centre for Labour Management Relations (CLMR).
“Where we’re at today… the unions are being forced almost to take some extreme actions, more militant actions,” he said. “I don’t think you’ll see them sit idly by much longer while the Harper government essentially says there’s no such thing as free collective bargaining in the federal jurisdiction.”
The intervention was apparent back in September 2008 when CAW went into early bargaining with GM and Chrysler and came up with agreements. But the federal and Ontario governments forced them back into bargaining, he said.
“This was an unprecedented situation where the government orders two parties in the private sector back to the bargaining table,” said Hargrove. “We start to see what has been a continuation of government interference or involvement in the free collective bargaining process.”
The same intervention was seen when Canada Post workers went on strike in June 2011. The new CEO was keen to have more casual workers, two-tier wages and benefits and a defined contribution (DC) pension plan, said Hargrove. So the union conducted rotating strikes.
“I don’t think it’s by chance the employer locked out the total workforce at post offices across the country and then the government brought in legislation to order them back to work,” said Hargrove.
Then there have been the disputes at Air Canada. Workers had been through a decade of major concessions to the employer, such as chopped wages, when the company was in bankruptcy, said Hargrove. But by 2011, the company was making good profits and the CEO received a salary of $3 million along with a retention bonus of $5 million — and the workers were furious, he said.
But when reservation agents threatened to strike in June, the government brought in legislation to stop it because it said such action would be a threat to the economy.
“Any strike you have is going to have some impact on the economy,” said Hargrove. “That’s the whole idea of collective bargaining, the balance that it brings to the table. Threat of a strike or a lockout does more to settle an agreement than anything else.”
In that dispute, the government also selected the arbitrator, when usually the parties select the arbitrator, said Hargrove.
“It’s little things like that that not only shows them siding with the employer but they’re slanting the system to make sure it comes out in favour of the employer,” he said.
The latest example concerned Air Canada’s flight attendants in September, who rejected two settlements approved by their union bargaining committee.
Before the workers could exercise their right to strike, Minister of Labour Lisa Raitt said the federal government was going to introduce back-to-work legislation. But with Parliament not sitting, Raitt could not pass the legislation, so she went to the Canada Industrial Relations Board to declare a strike as a potential public safety hazard.
“Hell, a pilot or a mechanic may be a safety hazard but it’s a real stretch to believe that about a flight attendant,” said Hargrove. “That really adds to this whole idea the federal labour department is completely useless, including the ministry. It puts (Raitt) solidly in the
corner of the company — she simply doesn’t want to have Air Canada have a dispute.”
The traditional view is that when it comes to government meddling in collective bargaining, the work in question has to be deemed an essential service, said Jennifer Cowan, a labour, employment and human rights lawyer at Farris in Vancouver.
“Whether or not (Harper’s) doing the right thing right now, he’s teetering along dangerous lines because the sectors he’s looking at don’t necessarily touch upon what the current legislation deems to be an essential service. Generally, that’s a dangerous path to take and that threat of that looming possibility over the heads of both union and employer bargaining committees can really change how bargaining’s conducted.”
At Air Canada, a rogue group of flight attendants stopped listening to their union because they believed there was nothing to lose by turning down an unsatisfactory collective agreement and using an interest arbitration process that might be more generous than the employer through collective bargaining, said George Smith, a fellow in the Queen’s University School of Policy Studies in Kingston, Ont., and labour relations expert.
“By not allowing the parties to go to a deadline and, if need be, a strike or lockout, you completely lose a part of the dynamic of collective bargaining which, by definition in Canada, is an adversarial process and anyone who’s ever been at the bargaining table knows a whole hell of a lot (more) happens in the last hours than does in the first weeks and months.”
The timing of the legislation is also interesting, said Cowan, whether it’s at the beginning of the process or deep into the dispute.
“Often, if you do it right away, it causes a lot of damage for collective bargaining in general because you have the union execs who, in the Air Canada situation, have recommended their members accept two contracts and they’ve declined, which shows a very huge disconnect between members and execs — you don’t often see that,” she said.
Most employers should be wary of government intervening at the beginning of the process because it then brings a third actor to the table and whatever goodwill has been made between the employer and the union during bargaining may be scuttled, said Cowan.
“Employers will then have to potentially work harder to mend that relationship if, in fact, workers are legislated back to work because people are going to be furious and the union and execs are going to be deflated because they weren’t able to get the deal they wanted to get and any job action was for nothing,” she said.
With both Canada Post and Air Canada, the organizations were looking for significant change in the collective agreement and were prepared to take a strike or lockout to make that change, said Smith.
“I don’t believe… that the same kind of change can be achieved through interest arbitration,” he said.
With the government saying, “Don’t even think about a strike or lockout,” arguably the process changes and the potential for settlement changes because now you’ve got someone who used to be a referee actually participating in the game, said Smith.
“I have no doubt their intent was a legitimate intent. They, as a government in power, were concerned about economic recovery and the potential harm a strike may cause but what they don’t realize and are only starting to realize now is that by restricting the right to strike and creating alternatives to a normal collective bargaining system, there are some unintended consequences that may be more harmful to the economy in the long run.”
With these moves, Harper will do a lot of damage to labour relations, the credibility of the labour department and the Canada Industrial Relations Board, said Hargrove.
“Those are bodies that have to have all the legislative and moral authority, they can’t be seen as being an arm of the government that simply has to do what the government instructs them to do or what the employer would like them to do. It removes any opportunity for them to play a critical role, which they have, historically, in collective bargaining.”
While it’s true governments in power have the right to make changes, this is something that requires a tripartite debate, said Smith. In the federal sector, any changes to the labour code have always been done through a respectful tripartite process with government, unions and employers.
“We seem to have lost that approach, we’ve lost the debate and discussion and we’ve certainly lost the consensus approach with this government,” he said. “I do see some dangerous activity, particularly by the federal government, to restrict the rights of unions.”
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