New Nova Scotia law follows in steps of a dozen other Canadian jurisdictions
Recently certified workers and employers with new unions in Nova Scotia enter 2012 in a new bargaining climate. In December 2011, the province passed legislation to amend its Trade Union Act to allow an arbitrator or the provincial labour board to settle first collective agreements.
First contract arbitration (FCA), under various models, is now in place in 12 jurisdictions in Canada, including the federal government and all provinces except New Brunswick and Alberta.
Some employers in Nova Scotia are voicing their opposition to legislation, and there are concerns it will harm the business environment because it introduces uncertainty in how an employer can regulate its workplace.
“It leaves it to a third party to decide the conditions of the first contract,” says Peter McLellan, a lawyer with Stewart McKelvey in Halifax, who represented employers in the consultation phase, adding there has never been a first contract issue in Nova Scotia.
But Sara Slinn, a law professor at Osgoode Hall Law School at York University in Toronto and co-author of a study on FCA legislation, found the results of the legislation are positive — and the law is seldom used.
There were 35,585 certifications granted in jurisdictions with FCA between 1986 and 2005. In only about four per cent of those cases was first contract arbitration applied for, and it was granted in about one-half of those cases — or less than two per cent of all certifications.
The ratio of first contract arbitration applications filed to certifications granted in the previous year is “absolutely miniscule,” Slinn says.
Melanie Vipond, an employment lawyer with Heenan Blaikie in Vancouver, found similarly low rates in her study of the British Columbia model, which was first introduced in 1974 and amended in the 1990s.
When the first contract arbitration has been used, it has led to enduring bargaining relationships, according to Vipond.
Under the B.C. model, parties can first access mediation if they reach an impasse. Unlike other jurisdictions, where mediators play a neutral third party role, in B.C. they can make recommendations.
Parties rarely require arbitration and, even when they do, the arbitrator often gives deference to the mediator’s earlier recommendations, Vipond says.
In about 82 per cent of cases where both parties accepted the mediator’s recommendations between 1993 and 2009, the two sides are still in a bargaining relationship to this day. That figure drops to 64.7 per cent when only one party accepted the recommendations.
In contrast, situations where neither side accepted the recommendations or where they allowed the dispute to reach a strike or lockout, only about 44 per cent of parties are still bargaining.
“Perceptually, the first contract provision is very helpful not only to achieve a first collective agreement, but it also gets the relationship off to a better start,” Vipond says, adding it can often foster and repair a relationship that has become corrosive through the certification process.
“It’s an embryonic relationship that has suffered slightly from certification and the mediator helps the parties realize they can get through this and it builds trust,” she says.
There is a perception FCA is biased toward trade unions, Vipond notes, but both she and Slinn discovered that doesn’t hold true. In B.C., for example, about one-third of FCA applications come from employers. Vipond had expected to find only union applicants, but was surprised to find employers were applying for FCA, as well.
FCA has been in place in some jurisdictions for over 40 years — under conservative and socialist governments — and there hasn’t been an attempt to change it, Vipond says.
The knowledge FCA exists can have a deterrent effect on both parties, according to Slinn.
“It’s an incentive for both parties to bargain more thoroughly,” she says. “Where an arbitrator ends up deciding, they must then live together for the next two or three years.”
The argument that FCA props up weak unions also doesn’t hold true, she says.
“You would have expected that after the first contract elapsed the union would decertify but that’s not what happens,” Slinn says. “It’s kind of a trial marriage in a way.”
Larry Hubich, president of the Saskatchewan Federation of Labour, was involved as a negotiator in the early years of FCA in Saskatchewan. The system works overall, despite the ongoing inability of the United Food and Commercial Workers (UFCW) to achieve a first contract with Wal-Mart in Weyburn, Sask., he says.
“There’s been a progression of stall tactics,” he says. “But normally you’re not dealing with an employer like that, with deep pockets.”
