Here’s the Back-to-Work legislation the government tabled Sunday afternoon. Check out the conditions that the arbitrator must consider in determining the collective agreement in Section 15(2):
1. The employer’s ability to pay in light of its fiscal situation.
2. The extent to which services may have to be reduced, in light of the award, if current funding and taxation levels are not increased.
3. The economic situation in Ontario and in the Greater Toronto Area.
4. A comparison, as between the employees and comparable employees in the public and private sectors, of the nature of the work performed and of the terms and conditions of employment.
5. The employer’s ability to attract and retain qualified employees.
6. The purposes of the Public Sector Dispute Resolution Act, 1997.
These also appear in the Crown Employees Collective Bargaining Act, which deals with strikes in the broader public service. Which side do you think benefits most from these restrictions? The requirement to consider “ability to pay” is a favorite of the Ontario Conservatives. They introduced it in the early 1980s and then again in Mike Harris’ reign. Some top arbitrators refused to act as arbitrators when ability to pay must be considered, including Martin Tepliksy. So, we won’t be seeing Martin this time.
The argument against ability to pay is a strong one. Since it is the government that funds the university and has in large measure contributed to the problems in this bargaining, it is a bit rich to then impose interest arbitration and order the arbitrator to consider the fact that the government underfunds education in setting the terms of the collective agreement. After all, it is not that the government cannot afford to give York more money to hire more tenure-stream profs, it is that the government has opted for different priorities–tax cuts, et cetera. Tepliksy made the point this way: “The reality is it is not a question of ability to pay. It is a question of unwillingness to pay” [M. Tepliksy, “Ability to Pay and the Independence of Arbitration: An Arbitrator’s Perspective”]
By requiring an arbitrator to consider how little money the university has, the government seeks to ensure that whatever award is ordered does not upset the government’s set of funding priorities. Interest arbitration also tends to be conservative, as an arbitrator does not usually want to forge novel arrangements that the parties themselves were unable to agree upon. I would be surprised if CUPE wins a 2 year deal or any significant change in staffing arrangements through this process. But we’ll have to wait and see.