Written by Bill Cole, Harvard Law School Labor and Worklife Program
As we emerge from months of isolation, economic turbulence and, for many, fractured work opportunities, collective agreement negotiators must more carefully surveil the environment in which they sometimes tangle. It is too early to fully understand how this pandemic will impact unionized workplaces, or the collective bargaining process. The well-worn phrase “new normal” is neither proven nor should it be overly influential in determining bargaining outcomes. I am not being insensitive to our friends and neighbours impacted by this pandemic, nor dismissive of its impact on our communities – but for negotiators in a collective bargaining relationship, the proof of impact must be demonstrable and enduring before significant collective agreement change is considered.
What is an environmental assessment? With years in the trenches, experienced negotiators will understand the surroundings in which they work but may lack the time and resources to conduct a fuller, more systematic evaluation of their organization’s strengths and vulnerabilities in the bargaining process. A fuller assessment requires negotiators to break down the many components of the parties’ relationship and bargaining process to strategically consider how each component can be shaped and then re-assembled to create a more favourable position in bargaining. In post-pandemic bargaining, where employers may attempt to seek extraordinary concessions, these extra efforts will be necessary to accurately assess what reasonable bargaining outcomes may be – gains or losses, long/short-term durations or even strikes or lockouts. As an example, union negotiators might consider making greater strategic use of production requirements to compel employers to “open their books” so they can examine financial conditions before concessions are contemplated, or proposals abandoned. At a minimum this tactic will assist in understanding whether a pandemic impact on a company’s bottom line will be temporary or more long-lasting, allowing you to carefully consider the question of whether there is a demonstrated need for change.
The temporary rearrangement of work resulting from the “Stay Home” requirements of COVID may encourage employers to re-evaluate how work is assigned in the longer term, whether that means allowing more remote work, workforce downsizing or contracting out. Employers may feel energized to roll back compensation or change what they view as inflexible work-rules, assuming that this is an opportunity and that labour is in a weakened position at the bargaining table. While bargaining vulnerability varies from sector to sector and in every round, overly ambitious objectives to alter existing working conditions based on pandemic conditions may create real risks for employers. Any perception of heavy-handed employer demands empowers union leaders to align the members around the preservation of existing working conditions.
What distinguishes post-pandemic bargaining from economic recessionary conditions is that COVID has indiscriminately impacted everyone. Absent real demonstrable need for changes to working conditions, workers may see through employer efforts to strip down agreements and, as a result, be motivated to take their own risks in pushing back. For labour, these skirmishes can present engagement opportunities, activist development, and longer-term power cultivation.
Collective bargaining in the public sector presents a different set of challenges in a post-pandemic world. Unlike the private sector, bargaining in the public sector is highly infused with the interests of the elected representatives. Many political leaders will be looking to gain positive exposure through insisting that public sector workers make economic sacrifices, even where there is no evidence of discontinuous change. As a result of their governance structures, municipalities have stable tax structures that help them weather rough times. Scholarly research following the 2008 recession found that, despite the significant hit to the Ontario manufacturing sector, municipalities did not suffer negatively. Municipalities are not permitted to budget for operating deficits, therefore they had no debt prior to entering the 2008 recession. They also rely heavily on stable and predictable property tax structures to fund operations. While municipalities can experience tax arrears, they are often small and of a short duration.
For the public sector, the notion of ability to pay may once again take center stage, requiring labour to take a deep dive into public sector finance. Ability to pay is the most frequent declaration for elected officials, pushing negotiations to impasse to offset political crosswinds around public fiscal management. Interest arbitration, the process widely used in resolving collective bargaining disputes in the public sector (for essential services like fire, police, paramedics and health care) will play a key role in balancing the competing interests of labour and employers – addressing what are sure to be voluminous submissions on employers’ fiscal condition and normative settlement patterns.
Negotiators cannot lose sight of ongoing savings made during the pandemic isolation period. There have been significant savings in the administration of extended health care plans that need to be understood and discussed in bargaining. Dentists, chiropractors, physiotherapists, and other paramedical professions are not providing services during the isolation period, and, depending on the size of your workplace, the resulting savings could be substantial. Having recently examined this question for a large municipal union, we were surprised to discover that dental claims were down 87% and extended health care down 34% in the month of April alone. Savings overall are in hundreds of thousands of dollars, and will continue into the early summer, as services slowly return to normal.
To be clear, the pandemic will present a range of impacts, depending largely on the nature of the work and the extent to which government provides survival funding. With Air Canada planning to lay off approximately twenty thousand workers, there is no question that the airline industry is experiencing serious turbulence. The healthcare sector, like seniors’ homes and/or long-term care facilities, will be an interesting sector to observe. As the front-line in the fight against COVID-19, we have called these workers our “heroes” – will that appreciation carry-over into collective bargaining?
So, what does collective bargaining look like in the coming years? In sectors where there is instability or uncertainty around pandemic impacts, parties may opt for roll-over or short duration agreements. In circumstances where longer term agreements are the only achievable outcomes in bargaining, parties may consider contingency agreements or reopeners that protect the medium/longer term interests of the workers, while responding to genuine, demonstrable short-term challenges for the employer.
Considering how a pandemic impacts the conditions of employment for unionized workers, we cannot lose sight of the fact that the burdens of a pandemic are disproportionately felt by unrepresented, often precarious workers. These men and women deliver our food, race around enormous warehouses to fill our mobile-app orders or tend to our fields to ensure we have food to eat. These workers have no voice in their workplace and cannot address issues around personal protective equipment or social distancing. As we prepare to return to collective bargaining, in a post-pandemic environment, there should be parallel policy discussions on sectoral bargaining, to capture these gig or lower skilled workers.
In the end collective bargaining in a post-pandemic world will require a greater attention to detail – particularly in an environment where the concept of a “new normal” will likely be the rationale for collective agreement change. In that environment, a preferred negotiating rationale may be “measure twice and cut (or add) once.”
Bill Cole, “Understanding Bargaining Environment: Collective Bargaining in a Post-Pandemic World” Canadian Law of Work Forum (May 21 2020): http://lawofwork.ca/?p=12536