In a surprise development yesterday, Air Canada and the union representing its flight attendants agreed to refer their bargaining dispute to interest arbitration.
The Arrangement
Details of the deal are sketchy, but this story explains the basic points. It seems the parties met with the Chair of the Canadian Industrial Relations Board, Elizabeth MacPherson. That meeting led to an agreement with several ingedients that have been made public:
1. The parties will try to agree on an arbitrator, failing which the CIRB will appoint one.
2. An interest arbitration hearing will commence on October 28th, and an arbitration award must be issued by November 7th. How’s that for fast. I assume the idea is that the arbitrator will issue a sort of bottom line decision, perhaps with reasons to follow, but I don’t know the details.
3. Bad faith bargaining complaints filed by both parties will be withdrawn.
Section 79 of the Canada Labour Code says that an agreement by the parties to refer a bargaining dispute to arbitration suspends the right to strike or lockout.
I haven’t heard yet, and the media stories don’t tell us, if a format for the arbitration was agreed to, such as “final offer selection“, which was the process that Air Canada agreed to use with the C.A.W. earlier this year. Rumour is that final offer selection was not chosen by the parties. The more common procedure for interest arbitration permits both parties to make submissions to the arbitrator about what the collective agreement should include, and the arbitrator is free to craft an agreement that makes the most sense, applying the usual rules and tests that interest arbitrators use.
Both sides have an incentive to avoid the government’s back to work legislation. The government’s preferred model includes final offer selection and a peculiar direction to arbitrators to value the employer’s competitive concerns over the employees’ economic interests. Air Canada recently tasted defeat in the final offer selection process when an arbitrator selected the C.A.W.’s proposal over Air Canada’s proposal, which included an attempt to introduce a completely new type of pension plan for new hirers. So Air Canada might have a bad taste in its mouth about final offer selection. CUPE may have preferred a deal in order to avoid this government’s slanted form of interest arbitration. So it would not surprise me if the deal includes no final offer selection, and no specific criteria imposed on the arbitrator to decide.
What Happens to the Minister’s “References” and Her Threats to “Reform” the Canada Labour Code
This agreement likely means that the Minister of Labour’s controversial “references” will be withdrawn, since they are moot now. It also avoids the battle in Parliament that would have ensued had the Tories introduced their back to work legislation, and the inevitable Charter challenge that would have been filed against the legislation.
Will it prevent the government from moving ahead with its cryptic threat to amend the Canada Labour Code in light of the bargaining disputes at Air Canada and Canada Post?
Who knows, but somehow I doubt it. Watch for reforms while the Tories have their majority that will empower or direct the labour board, or empower the Minister to restrict a work stoppage when the stoppage poses a threat to the economy (however the government defines that), similar to the powers already available at present to restrict work stoppages when they could cause a threat to health and safety. In other words, we may be moving towards a model in which economic factors will be treated as “essential” in the same sense that threats to health and safety have been traditionally.
We have already gone down this road in Ontario. The only justification given by the Ontario government for declaring the TTC an essential service was the adverse impact on the Toronto economy. [Remember the $50 million per day myth] It is not a leap at all to believe that the Tories will add “economic concerns” to our legislative understanding of “essential services” in order to make it easier for the government to restrict strikes. This would prevent the Minister from ever again having to lie so blatantly to the public in order to pretend a stoppage would harm public safety just to use the “essential services” part of the Code to prevent a strike.
What do you think? Should the Feds add “economic concerns” to the essential services criteria, like this:
87.4 (1) During a strike or lockout not prohibited by this Part, the employer, the trade union and the employees in the bargaining unit must continue the supply of services, operation of facilities or production of goods to the extent necessary to prevent an immediate and serious danger to the safety or health of the public or serious harm to the Canadian economy.
Do you perceive any problem with a reform like that?
