June 7, 2016 – Ottawa –
The Liberal government is introducing stopgap measures for the current round of collective bargaining with Canada’s public servants that will get around controversial rules of Tory-era legislation until that law is repealed.
Treasury Board President Scott Brison told the 18 unions in a recent letter that he agreed to the interim measures as a way to speed up the negotiations, which have been dragging on for several years.
“These interim measures are meant to support a timely resolution of this round of bargaining,” Brison said in the letter. “While the measures must be permissible under the current legislation, they are meant to reflect, to the extent possible, the spirit of the pre-Bill C-4 regime.”
“The government … is committed to restoring fair and balanced labour laws that recognize the important role of unions in protecting the rights of workers.”
Last month, Brison promised the Liberals would unwind the Tory-era legislation that rewrote rules for collective bargaining that had been in place for nearly 50 years. Those changes were a major blow to the unions bargaining clout and their right to strike. The unions quickly filed constitutional challenges in court to overturn them.
With the new measures, the unions have agreed to postpone their constitutional challenge of the Tory legislation, which was scheduled for a court hearing Tuesday.
As pleased as unions had been about Brison’s earlier promise, legislation to rescind the Tory law wouldn’t be tabled until the fall, which meant the current and highly contentious round of bargaining over sick leave would be under the Tory rules.
The measures were quietly negotiated with the government behind-the-scenes in recent months and will cease once the new legislation is introduced in the fall.
The measures they have come up with mirror the way the government and unions used to bargain and handle impasses. They manage to comply with the Tory legislation but give unions the rights they enjoyed under the old rules.
Debi Daviau, president of the Professional Institute of the Public Service of Canada, said the measures are a “big victory” and are as close to operating under the old rules as possible without repealing the law.
“This agreement reflects the spirit of where we intend to go in the fall when the legislation is changed,” she said. “In the meantime, it resolves all the concerns we have to get us through this round of bargaining while waiting for the repealing of C-4 in the fall.”
Labour relations in the public service used to be unique. Under the old rules, bargaining was a two-track process that allowed unions to decide whether they wanted to settle their disputes by arbitration — a process in which arbitrators can impose a settlement — or conciliation, in which a settlement can be recommended rather than imposed, and is backed by the right to strike.
The Conservatives changed all that. The government would decide whether disputes were solved by arbitration or conciliation/strike. The only bargaining units that could seek arbitration were those in which more than 80 per cent of the employees have been designated essential workers.
The Liberals will now let bargaining agents decide whether they want to resolve a dispute and they have until Sept. 1 to decide. They can opt for “binding conciliation” on some or all issues. This process is the equivalent to arbitration under the old rules. The conciliation report’s recommendations are binding and unions can’t strike.
The Tory legislation also blunted the impact of strikes by giving the government “exclusive” right to decide which workers were essential and thus couldn’t strike. The government could decide which “service, facility or activity” would be designated “essential” for the safety and security of Canadians and unions had no recourse to challenge those designations.
The Liberals have agreed to issue a directive by June 30 to all departments that any employees occupying designated positions can’t be given non-essential work in the event of a strike.
Brison also agreed to a process to review essential services designations with unions. Any disagreements will be sent to a third party to resolve.
The Conservatives also limited the factors arbitrators and conciliation boards could consider when making their decisions in disputes — a measure unions argued favoured the government. Arbitrators had to give primacy to two factors: the government’s “fiscal circumstances relative to its budgetary policies” and the ability to recruit and retain employees.
The Liberals have made arbitrators free to consider whatever factors they “see fit.” The government can make arguments about the state of economy and retention and recruitment but they won’t be primary factors to consider.