Move a ‘risky negotiation tactic,’ says lawyer
On June 7, the federal government imposed a vote on its most recent contract offer to employees of the Canada Border Services Agency (CBSA) — a power it has never used before.
The provision allowing the government to call such votes was added to the Public Service Labour Relations Act in 2005. The vote bypasses the bargaining process by having the 8,600 employees represented by the Customs and Immigration Union (CIU) vote on the government’s May 6 offer.
"It’s the fundamental right of negotiation that’s in play here. We kept saying the only thing we want is to go back and negotiate in good faith in a bargaining environment, certainly not by threatening us: ‘If you don’t take this, we’ll go directly to your members,’" said Jean-Pierre Fortin, president of the CIU in Ottawa. "They’re trying to hijack the process."
The announcement of the vote came two days after the Public Interest Commission (PIC) unveiled a conciliation report with its recommendations for the negotiations. The parties have been waiting for the report since December 2012 and while the recommendations are not binding, the report is designed to help both parties reach an agreement.
"We saw some very good pointers with the PIC report that actually were favourable for us to at least start negotiating with the employer to come up with a positive outcome," said Fortin.
One of the biggest points of contention is the parties do not agree on the appropriate comparator groups for the CBSA employees, said the report.
The CIU is comparing the border guards to correctional officers and police forces while the CBSA is comparing them to Parks Canada enforcement officers and airport security personnel.
"We’re trying to be in line with other law enforcement agencies… with paid meal periods, protection for folks that may fail on the arming program and telework for non-uniform officers," said Fortin.
The report concluded the workers — the majority of which are armed — do not fit easily into either of these comparator groups, but conceded that they are more akin to law enforcement occupations rather than those in security-type roles.
The report supported the employer’s proposed wage increase of 1.5 per cent in each year of the three-year agreement. The union had proposed a 3.7 per cent market adjustment effective June 21, 2011 (the date after the collective agreement expired) and a three per cent increase each year.
The report also includes recommendations around scheduling changes, overtime, vacation leave, maternity-related reassignment or leave, and part-time employees.
The CIU is encouraging its members to vote no to the government’s contract offer in hopes of getting back to the bargaining table and implementing some of the recommendations from the report.
Employer can use power once
While this is the first time a last contract offer vote has been seen in the federal government, it does occur in other jurisdictions, said Maurice Mazerolle, director of the Centre for Labour Relations Management at the Ted Rogers School of Management at Ryerson University in Toronto.
The employer can often only use this power once in the collective bargaining process. It usually occurs during long, protracted negotiations where the gap between the parties is still quite high, he said. CBSA and the CIU have been in negotiation for two years.
"Quite often, management feels maybe the negotiating team for the union is really not representing the interests of the workers or they’re not communicating the employer’s offer correctly back to the workers or they have the feeling (union) leadership is out of touch because they are the ones who are in touch with their workforce and they know what the workforce wants," he said.
The power to issue a last offer vote also acts as a checks and balance mechanism, said Mazerolle. The executive committee of a union is elected on a political platform and they may have created issues that were not true concerns of the members, but sounded good during the election, he said.
"I’ve been in situations years ago where the committee had their own agenda, which wasn’t necessarily the same agenda as membership. And they were holding the whole negotiation hostage," said Mazerolle. "So how do you get past that? One way is to go directly to the membership."
In this particular case, the government likely not only believes its most recent offer is reasonable but it also has some public interest concerns, said Laura Williams, principal of Williams HR Law in Markham, Ont.
"Given the nature of the work that border guards perform — security interest of the country, arguably — having a strike or not reaching an agreement could compromise the public interest. I think that’s really what’s at the forefront of the government’s justification," she said.
But issuing a last offer vote is a risky negotiation tactic and is a very hard-line move for employers, said Williams.
"They can only do that once, and if they pull the trigger too early or do it at all, it could very well backfire and force them back to the table and set the employer back in the negotiation process," she said.
It’s not always the best strategy because it can also negatively impact the relationship between the employer and the union, said Williams.
"The labour relations and union-management relationship is ongoing. The union wants to be in control of the negotiation process without the employer forcing the members’ hands to vote," she said.
If an employer decides to impose a vote on its last contract offer, packaging becomes very important, said Mazerolle.
"You have to emphasize the benefits of all the improvements," he said. "It’s like marketing — you have to be able to convince people what you’re proposing meets their needs."
And the employer should make sure not to give everything away on that final offer, just in case it does need to go back to the bargaining table, said Mazerolle.
There has been a lot of friction between this particular government and the unionized workforce — such as rumours around cutting civil services positions, weakening union security clauses, right to work legislation, doing away with the Rand formula, and making it harder to unionize and easier to decertify unions — and there is some suspicion around the timing of this vote, said Mazerolle.
"If this was a totally different environment, this may or may not be questioned. It might be seen as just one of the rights an employer has under the law and they honestly believe that the membership would support their offer… but when put in the context of all these other events, then everything becomes suspicious," he said.
Unions are concerned the federal government may be setting a precedent with this final offer vote, said Fortin, and may use this tactic in future negotiations with the other 18 federal unions.
"Recently, the way the government has been conducting themselves with the bargaining process at many tables, and especially our table, (the final offer vote) may not be that surprising, but nonetheless, we are surprised they are going that far now," he said.