Rarely used option in employer’s arsenal comes with dangers, especially in public sector
When labour negotiations break down they typically go one of two ways — either the employer locks out employees or the employees go on strike.
But there is a third option. And, although it’s rarely used, the City of Toronto pulled it out of its arsenal to reach a deal with paramedics and outside workers, says Michael Lynk, a legal expert at Western University in London, Ont.
That option is to unilaterally change the terms and conditions of employment — essentially imposing a new contract — after the old contract has expired and while the parties are in a strike/lockout position.
While the contract is only valid in the period while the two sides continue to negotiate, the very threat is often enough for the employer to get what it wants, Lynk says.
“It’s usually used when the employer wants to wield a big stick,” he says.
The city and the Canadian Union of Public Employees (CUPE) Local 416 reached a tentative agreement on Feb. 5 that was ratified early last week, after the city said in February it would impose conditions if the two sides couldn’t reach an agreement within a 48-hour window.
Those conditions, which included significant revisions from the expired collective agreement, represented the city’s final offer.
While the two sides reached a contract before that happened, the mere suggestion got the city what it wanted, Lynk says.
“It didn’t want to give the union the tactical advantage of saying they were locked out. By saying we’ll change the terms of the agreement, if the workers had showed up they would be saying they accept the new conditions,” he says.
This strategy is rarely used because employers don’t want to risk damaging relationships with the union and their workers, Lynk says.
“Employers realize that triggering problems with the union is often more trouble than it’s worth,” he says. “Most modern-day politicians also remember the fights with labour back in 1996–97 and don’t want to go through that again.”
In the past, some employers have used this strategy to impose slightly better wages and conditions when confronted with a situation where the union wouldn’t strike and the employer didn’t want to lock out, according to Jamie Knight, a partner with Filion Wakely Thorup Angeletti in Toronto.
“It was a sign of good faith,” he says, noting he has rarely seen employers unilaterally impose changes during this period.
Employers today may be tempted to impose harsher conditions if they think the union is weak, Knight says.
“But if you’re really calling the union’s bluff then you want to be aggressive, but not to the point where people coalesce around them,” he says.
It’s especially rare for a public sector employer to make this threat because they don’t want to lose public support by being seen as a bully, Lynk notes.
“The big thing in public sector bargaining is winning the support of the public and not having them upset with you,” he says.
The circumstances were different in this dispute, says Lynk.
“There was such bad will toward both sides for the 39-day strike in 2009. They both had to appear not to be the bad guy,” he says. “This way, the union wouldn’t have the benefit of saying it was locked out. So, that aggression worked to (the city’s) benefit.”
It’s notable that while the terms and conditions imposed in these circumstances do not constitute a collective agreement, Lynk says common law likely still applies, although it really hasn’t been tested because the option is so seldom employed.
“My assumption would be that it would apply but it would be pretty weak,” he says. “That would make the union vulnerable.”
The newly ratified agreement between CUPE and the city alters the so-called “jobs for life” clause that prevented workers from being laid off by privatization or mechanization.
The protection, once available to all city workers, now applies only to those with at least 15 years’ seniority.
Paramedics will become an essential service but they will not have access to binding arbitration.
In exchange, the deal promises wage increases of 4.5 per cent over four years.
With “one hand tied behind its back,” this is probably the best the union could hope for, Lynk says.
“For the union this may be a win in the sense of it only being one step backwards, not two or three,” he says. “But this won’t be seen as a victory in the long run.”
