Yesterday was an interesting day on the labour relations front. Check out this Toronto Star article. Premier McGuinty called Electro-Motive’s (Caterpillar) bargaining tactics which have led to a lockout near London of some 450 workers un-Ontarian:
“McGuinty: It’s not working because the balanced, made-in-Ontario approach requires that unions and management sit down and talk to try to work out their differences, and so far the owners of Electro-Motive have failed to live up to Ontarians expectations. We understand they are both free to determine their own tactics, but we also expect both sides to show some flexibility to try to land an agreement that acknowledges that the company needs skilled workers and those workers deserve a fair wage.”
While Ontario Conservative leader Tim Hudak usually has a lot negative to say when workers strike, he has been invisible in this dispute. However, the Conservative MPP for the London area (Jeff Yurek) has taken a position, criticizing McGuinty for not doing enough to pressure Caterpillar. He said this:
“Yurek (Conservative MPP) Mr. McGuinty needs to show some leadership, call the president of Caterpillar and say let’s get back to the table. He needs to step up”
So now we have representatives of all three major political parties calling for government intervention in some form in the Caterpillar lockout. Representatives of all three parties agree that the employer needs a good kick in the ass.
That’s highly unusual. This consensus might be limited to agreement that political leaders should be engaged in back room discussions with Caterpillar. Whether governments should change laws or policies to deal with greedy, brutish employers is another question.
Does the Caterpillar situation raise a need for legal reforms? If so, what reforms?
Moral Suasion and Procurement
Some commentators have focused on policies and legal reforms that are not “labour law” in the true sense. Professor Yates argued in this piece that the our governments need to develop procurement policies that benefit Canadian manufacturers, just as the U.S. is pushing its “Buy American” policy, which gives preference to American producers. This is the opposite of Free Trade, which the Americans always push on everyone else. Yates and others also call for stronger conditions to be attached to foreign corporations that buy Canadian companies, conditions that require some form of guarantee that good jobs will remain in Canada. Martin Cohn called for McGuinty and Harper to get on the phone and show Caterpillar that Ontario/Canada won’t be pushed around, and to threaten a Canadian boycott of Caterpillar products. All of this makes sense, and could have some impact, although I have my doubts in relation to the particularly brutish Caterpillar Corp.
Labour Law Reform
Sometimes, recommendations have been for labour law reform. This is what interests me most. Yates suggested that our governments need to ensure that employers “bargain in good faith”. But what does that mean? As far as I am aware, Caterpillar hasn’t been found in violation of the duty to bargain, which appears in Section 17 of the Labour Relations Act and says only this:
The parties shall meet within 15 days from the giving of the notice or within such further period as the parties agree upon and they shall bargain in good faith and make every reasonable effort to make a collective agreement.
The trouble with this legal duty is that it has long been interpreted narrowly, focusing on process rather than the substance of bargaining. Labour Boards have ruled that this duty to bargain is not intended to compensate for lack of bargaining power, so that an employer can use its superior bargaining power to insist on concessions, provided it is prepared to engage in a dialogue with the union about the various proposals put on the table. The model is based on brute strength: either party is permitted to stick it to the other if its bargaining power permits it to do so. If a union was able, it could strike to try and win a 50% pay increase. The flip-side is that an employer can lockout workers to try and win a 50% pay cut.
How would you change the duty to bargain to prevent an employer like Caterpillar from locking out workers in order to achieve a 50% pay cut?
There are various other possibilities available in labour law reform. A couple keep coming up in discussions (though there are other possibilities I won’t touch on here).
One option is to for the government to intervene whenever it thinks that a stalemate has been reached or that one party is acting unreasonably. That is sort of what is happening now in the Federal sector, where the Tories are routinely legislating an end to work stoppages. Note though that it is usually unions that complain about that intervention. Asking governments to legislate an end to work stoppages whenever it believes that one side of the other is being unreasonable is a dangerous, slippery slope for the labour movement. You may end up with no effective right to strike, and worse, an interest arbitration system that is skewed in employers’ favour. That is certainly the goal of our present Federal government, which has begun to impose limitations on arbitrator’s discretion, requiring them to focus on the employer’s economic concerns over employees’ interests.
Indeed, the greatest risk to Canadian collective bargaining today is not increased use of back-to-work legislation and restrictions on the right to strike and lockout. It is the desire of Conservative politicians to replace those rights with a non-neutral interest arbitration process designed to advance the employer’s interests in cost savings and “flexibility” over the employees’ interests in decent, secure employment. A great victory for labour would be a Supreme Court of Canada ruling that legislation that handcuffs an interest arbitrator’s discretion to order a collective agreement he or she thinks is fair and reasonable violates the Charter’s guarantee of freedom of association. That issue may come up in the impending Charter challenge against the Canada Post back-to-work legislation.
For advocates of greater government intervention to deal with rogue employers like Caterpillar, there is a fundamental question to answer:
If it is wrong for the government to intervene and stop a strike by workers at the TTC or Air Canada, why is it right for government to intervene and stop a lockout at Caterpillar? The labour movement needs a compelling answer to this question. What might it be?
A second option is to grant the union or employer the right to request interest arbitration if they think bargaining has reached an impasse after a specified period of time. This is what CAW economist Jim Stanford suggested when he recommended other jurisdictions look to Manitoba for a solution to long term strikes and lockout. In Ontario now, both parties must jointly request interest arbitration, which rarely happens since one side would usually believes it is better off continuing with a work stoppage. The Manitoba legislation allows either the union or the employer to ask the labour board to order an end to the work stoppage and order interest arbitration. The key sections begin at s. 87.1, which says this:
87.1(1) Where a collective agreement has expired and a strike or lockout has commenced, the employer or the bargaining agent for a unit may apply in writing to the board to settle the provisions of a collective agreement if
(a) at least 60 days have elapsed since the strike or lockout commenced;
(b) the parties have attempted to conclude a new collective agreement with the assistance of a conciliation officer or mediator for at least 30 days during the period of the strike or lockout; and
(c) the parties have not concluded a new collective agreement.
Therefore, this section only comes into play after a work stoppage is already 60 days along. The legislation then grants the Board the power to terminate a strike or lockout and refer the matter to neutral interest arbitration (s. 87.3).
This would seem to build in an expected end to the work stoppage that we would expect would steer the parties towards reaching an agreement prior to the 60 days. I don’t have information on how often it’s been used. Any Manitoba readers have information?
What do you think of Manitoba’s model? Is allowing either side to send the matter to arbitration after a period of time a sensible solution?
Why wait 60 days? How about 30 days? Or how about allowing this right of interest arbitration right away? Can you think of arguments for and against these proposals?
What other suggestions for preventing long, nasty strikes and lockouts come to mind?