The Law of Work
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
  • Home
  • About
  • Professor David Doorey
  • Osgoode Hall LLM
  • Books
  • Guest Contributors
  • Useful Links
    • Archive
The Law of Work
Law of Work Archive

Round 3 in Air Canada's Labour Woes Goes to Air Canada. A Recap

by David Doorey June 19, 2012
written by David Doorey June 19, 2012

The first arbitration award under the various Air Canada back to work legislation was issued this week.  It was decided pursuant to Bill C-33, which applied to the maintenance crews and the pilots.  This award, by well respected and leading Arbitrator Michel Picher, dealt with the maintenance crews.
Background Recap
If you are keeping score, this is Round 3  in the ongoing Air Canada saga. In Round 1, the CAW, representing customer service agents agreed with Air Canada to send the one outstanding issue–the status of the pension plan–to Final Offer Selection arbitration, thereby bypassing Bill C-5, the Tories back-to-work legislation. The arbitration panel selected the Union’s proposal. I explained that award here. Unions: 1  Air Canada: 0
In Round Two, the flight attendants’ union bargains two proposed collective agreements under the threat of back-to-work legislation if they elected to strike, both of which are rejected by the membership in ratification votes.  Fearing a strike before she can pass the legislation, the Minister files a highly unusual and cynical reference under the Canada Labour Code, claiming that an Air Canada work stoppage could pose a imminent threat to the health and safety of Canadians. This tactic would delay a strike long enough for the government to pass no strike legislation.  The union and AC then agree to refer the dispute to the Chair of the CIRB, again under a process of final offer selection.  The Chair selects the Employer’s proposal, principally on the basis that the agreement that was agreed to by the union’s bargaining committee, but rejected by the membership, was strong evidence of where the bargaining process would have ended up had there been a right to strike or lockout.  I summarized that award here. Unions: 1  Air Canada: 1
This is Round 3, involving the maintenance crew.   Recall that there were nasty wildcat strikes involving this group after the Feds, once again, introduced Stay-at-Work legislation, this time Bill 33.  That legislation imposed Final Offer Selection, and includes the controversial attempt by the state to limit the arbitrator’s discretion in crafting an award by imposing mandatory criteria that must guide the selection of  the proposal.  It is controversial because the criteria emphasize the employer’s concerns more so than the employees’ interests in improved wages and benefits.  It required Picher to ‘take into account’ the tentative agreement that was rejected by the membership, and terms and conditions of employment in other airlines, and the economic viability and competitiveness of the employer, and ‘the sustainability of the employer’s pension plan’.
The award issued this week by Arbitrator Michel Picher is the first to be decided under the Tories interventionist model.  Air Canada won.  Unions: 1  Air Canada: 2
The Picher Award
Here is Picher’s decision.
In his view, the employer’s proposal was most consistent with the criteria that restrained his discretion in Bill 33.  Here is what Picher says about that statutory language:

It must also be noted that the instant arbitration is unique, to the extent that it is governed by Bill C-33, a law which places certain clearly defined obligations on the arbitrator.  For the purposes of this Award, section 13 and parts of Section 14 of the Act bear close examination….  As a matter of general practice, Canadian arbitrators called upon to resolve interest arbitration disputes have effectively given little or no weight to ‘ability to pay’ arguments submitted to them by employers.  While I consider that approach to be valid and appropriate generally in interest arbitrations in both the public and private sector, I am compelled to recognize that the legislation that defines this process, and my corresponding jurisdiction is clearly more constraining.  That is particularly so as relates to my obligation to take cognizance of the company’s pension plan burden, a factor of such magnitude that it goes indisputably to the long term sustainability of the Company.

According to Picher, the Employer’s proposal was most consistent with the criteria imposed upon him in the legislation.  The employer was clever, because it offered to sweeten the pot slightly (by returning a benefit that the union had reluctently conceded in earlier bargaining) on condition that the union fully back the employer’s efforts to obtain a long term extension of a penson funding holiday from the federal pension authorities.  Since obtainng that extension was, in Picher’s opinion, key to the long term viability of the pension plan, a criteria he was required to emphasize by virtue of Bill C-33, the employer’s proposal wins.  He noted that, even under the employer’s proposal,  the union still obtains a better deal than the one the bargaining committee had recommended earlier, but which has been rejected by the membership.   So, in this way, the employer’s proposal both addressed the sustainability of the pension plan, and the earlier tentative settlement, although it actually gave the union more than what it had bargained in the tentative (rejected) agreement.  We are not told much about the union’s proposal, other than it would have been more costly to the employer.

So, do you think that the restrictions in Bill C-33 imposed on Picher’s arbitral discretion ended up making a difference to the outcome? Stay tuned for Round 4, involving the Pilots!

0 comment
0
FacebookTwitterLinkedinEmail
David Doorey

Professor Doorey is an Associate Professor of Work Law and Industrial Relations at York University. He is Academic Director of Osgoode Hall Law School’s executive LLM Program in Labour and Employment Law and a Senior Research Associate at Harvard Law School’s Labor and Worklife Program. Professor Doorey is a graduate of Osgoode Hall Law School (LL.B., Ph.D), London School of Economics (LLM Labour Law), and the University of Toronto (B.A., M.I.R.).

Leave a Comment Cancel Reply

You must be logged in to post a comment.

previous post
On the New Prohibited Ground in the Ontario Human Rights Code: Gender Identity
next post
Alberta Joins the Bad Employer Sunshine List Parade. Should We Go Further Still?

You may also like

This Blog Entry is About the Lunacy of...

July 21, 2019

A Cross Country Update on the Card-Check versus...

October 3, 2018

The Folly of Not Voting to Strike in...

September 16, 2018

Unifor Posts Photos of Replacement Workers as Gander...

September 10, 2018

A Wrongful Dismissal Case and the Absence of...

August 29, 2018

China Said to Quickly Withdraw Approval for New...

August 27, 2018

The Latest Hot E-Commerce Idea in China: The...

August 27, 2018

The Trump Administration Just Did Something Unambiguously Good...

August 27, 2018

Unstable Situations Require Police In Riot Gear Face...

August 27, 2018

Trump’s War on the Justice System Threatens to...

August 27, 2018

Subscribe via Email

Enter your email address to subscribe and receive notifications of new posts by email.

Join 338 other subscribers

Follow Us On Social Media

Twitter

Latest Tweets

David J. Doorey🇨🇦Follow

Law Prof. Talking #labor & #employment #law #Gig to the masses. Alpaca ❤️ @YorkUniversity @OsgoodeNews @LSELaw @LWPHarvard @Jacobin @OnLaborBlog https://t.co/5V9r8VPHsh

David J. Doorey🇨🇦
Retweet on TwitterDavid J. Doorey🇨🇦 Retweeted
jamesbrad263Brad James@jamesbrad263·
6h

@TheLawofWork @OFLabour Thanks for giving me space on your blog last December to bloviate and whine about this broad topic: https://lawofwork.ca/james_whysoquiet/

Reply on Twitter 1559880762480070657Retweet on Twitter 15598807624800706571Like on Twitter 1559880762480070657Twitter 1559880762480070657
TheLawofWorkDavid J. Doorey🇨🇦@TheLawofWork·
7h

It is rather striking that the @OFLabour is not leading a charge for improved access to collective bargaining.

Emphasizing improved labor standards over collective bargaining rights.

Brad James@jamesbrad263

Private sector union membership is slipping. Ways to address that could include better rights for employees to form unions (as BC has done) or building a broader-based bargaining system for franchise workers. But those aren't in this list of goals from Ontario's union federation. https://twitter.com/OFLabour/status/1559242326391791616

Reply on Twitter 1559872838995218437Retweet on Twitter 1559872838995218437Like on Twitter 15598728389952184374Twitter 1559872838995218437
Retweet on TwitterDavid J. Doorey🇨🇦 Retweeted
greenhousenytSteven Greenhouse@greenhousenyt·
21h

Breaking- NLRB says workers at Amazon warehouse in Albany NY area file petition for union election for 400 workers to join Amazon Labor Union

Reply on Twitter 1559661375890268163Retweet on Twitter 1559661375890268163175Like on Twitter 1559661375890268163907Twitter 1559661375890268163
Load More...

Categories

  • Alberta
  • Artificial Intelligence
  • Australia
  • British Columbia
  • Charter of Rights and Freedoms
  • Childcare
  • Class Action
  • Climate and Just Transition
  • Collective Bargaining
  • Common Law of Employment
  • Comparative Work Law
  • competition law
  • construction
  • COVID-19
  • Diversity
  • Employee Classification
  • Employment Insurance
  • Employment Regulation
  • Europe
  • Financial Industry
  • Fissured Work
  • Freedom of Association
  • frustration of contract
  • Gig Work
  • Health and Safety
  • Health Care
  • Human Rights
  • Immigration
  • Interest Arbitration
  • International Law
  • Labour Arbitration
  • Labour Economics
  • Law of Work Archive
  • Legal Profession
  • Manitoba
  • Migrant Workers
  • Minimum Wage
  • Nova Scotia
  • OLRB
  • Ontario
  • Pension Bankruptcy
  • Privacy
  • Public Sector
  • Quebec
  • Real Life Pleadings
  • Saskatchewan
  • Scholarship
  • Sports Labour
  • Strikes and Lockouts
  • Student Post
  • Supreme Court of Canada
  • technology
  • Transnational Law
  • Uncategorized
  • Unions and Collective Bargaining
  • United States
  • Videos
  • Women and Work
  • Wrongful Dismissal
  • Home
  • About
  • Guest Contributors
Menu
  • Home
  • About
  • Guest Contributors
  • Legal Scholarship
  • Useful Links
  • Archive
Menu
  • Legal Scholarship
  • Useful Links
  • Archive

2020. Canadian Law of Work Forum. All Rights Reserved.