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CHOOSING THE DISPUTE RESOLUTION MECHANISM
Executive Summary
The purpose of this document is to provide members with a level of appreciation for the types of Dispute Resolution Mechanisms (DRM) that are available for use during the Collective Bargaining Process.
DRMs are options that are available to Bargaining Agents to exercise should there be an impasse between the Employer and the Bargaining Agent at the negotiation table. However, before considering the use of any such mechanism, all reasonable attempts must first be made to reach a negotiated settlement at the table. Only upon failure of these negotiations can a DRM be engaged.
The two available Dispute Resolution Mechanisms are:
(1) Binding Arbitration; and
(2) Conciliation/Strike
It must be noted, however, that the specific DRM must be chosen in advance of the negotiation process. In addition, the Employer must be advised of the selected mechanism prior to the commencement of the bargaining/negotiation process.
The Collective Bargaining Process stipulates that notice to bargain must be given no more than 90 days prior to the expiry of the current agreement. Therefore, as the current collective agreement for the FI Group expires November 6, 2004, notice to bargain would have to be provided no earlier than August 8, 2004. Given the Employer must be advised of the chosen DRM concurrently with the notice to bargain, the Association will submit a comprehensive survey to the general membership in June 2004. In this survey, the membership will be asked to select the DRM if the negotiations reach a point of impasse.
In order to better inform members of their options, the Association will provide communiqués on DRM and other relevant collective bargaining information. These communiqués will elaborate on the pros and cons of the options. Should you have any questions with regards to the DRM process, please contact the APSFA National Office at (613) 728-0695 or (877) 728-0695.
CHOOSING THE DISPUTE RESOLUTION MECHANISM
The purpose of this article is to provide an appropriate background on collective bargaining and to help members chose the dispute resolution mechanism (DRM) that they support. Prior to starting negotiations, the membership must choose a DRM. The choices are binding arbitration or conciliation/strike.
How does Collective Bargaining Work
The bargaining agent with input from members conducted through a survey negotiates the terms of the collective agreement with representatives of the Treasury Board (the employer).
Preparing for Negotiations
The association must legally give notice to bargain no earlier than 90 days before the expiration of the current collective agreement.
Before the association formally gives notice to the Treasury Board to bargain, the compensation and benefits committee will prepare the bargaining demands. The demands are based on both the consolidated input from the members, analysis of other collective agreements, external and internal salary relativity analysis and the past rounds of collective bargaining.
The bargaining agent must elect a dispute mechanism in the event that a settlement cannot be reached at the table. The dispute mechanism (binding arbitration or conciliation/strike) cannot be changed during the negotiations.
It is extremely important to develop strategies to support the collective bargaining effort especially with decision makers in the public service and Parliament. A reasonable level of support from the general membership is a key requirement for the strategy as the strength of a bargaining agent inherently lies with its membership.
Dispute Mechanisms
Conciliation/Strike
The conciliation process can produce a mediated tentative settlement subject to ratification by members of the bargaining agent. Therefore, if the general membership was to choose this method, it would be the threat of job action that would provide incentive for the employer to negotiate a reasonable settlement. The Association and membership have more control over the bargaining process than with binding arbitration.
The conciliation board process does not contain criteria that the board must consider when recommending a settlement. The conciliation board's objective is to assist the parties in reaching an agreement after negotiations have broken down and the parties are at an impasse. The conciliation board will look at the issues and the probability that the members of the bargaining agent will be able to influence the negotiations through job action such as a strike.
When the conciliation/strike method is chosen, the bargaining agent and employer go through a designation process to determine what employees are deemed essential to the health and safety of Canadians and cannot legally strike. The association anticipates approximately 200 members or less than 8 percent of the group to be designated.
There are job actions other than strike that can be taken without a significant loss of pay and the employer cannot implement a lockout. A lockout is the opposite of a strike; that is when the employer prevents employees coming to work unless they agree to the employer's terms.
Arbitration
The fundamental difference between the two methods is that binding arbitration results in an arbitral award that imposes a settlement on both parties. Neither side can reject the settlement (there is no recourse) even though it can be perceived to be unreasonable or unfair based on the facts presented to the arbitration board. Binding arbitration tends to be a compromise and is less than ideal as it does not give the parties incentive to negotiate at the table and resolve issues.
Parliament has introduced a number of criteria that an arbitration board is required to consider. These were under section 67 of the former Public Service Staff Relations Act.
a) The needs of the Public Service for qualified employees;
b) The conditions of employment in similar occupations outside the Public Service, including such geographic, industrial or other variations as the board may consider relevant;
c) The need to maintain appropriate relationships in the condition of employment as between different grade levels within an occupation and as between occupations in the Public Service;
d) the need to establish terms and conditions of employment that are fair and reasonable in relation to the qualifications required, the work performed, the responsibility assumed and the nature of the services rendered;
e) Any other factor that to it appears to be relevant to the matter in dispute; and
f) The government's financial situation.
Binding arbitration has traditionally been the option of choice for the FI group. Some factors to consider with binding arbitration are:
1) Conciliation/mediation is available as an option before the parties go to binding arbitration. However, the conciliation officer can only make recommendations that are not binding on either party.
2) It is the employer's contention that there must be some incentive for the parties to reach a table settlement rather than resorting to binding arbitration. The employer asked the last arbitration board not to automatically give the FI group all the improvements other groups had negotiated at the table. A reliance on binding arbitration as the primary method for settlement will weaken our bargaining position and will result in unfavorable settlements in the long term.
3) Arbitration awards tend to be compromises and it is unlikely that innovative solutions will be found by the arbitration board. Historically, the best settlements obtained have been achieved either through the threat or use of job action such as strikes.
Other Factors
1. The arbitration briefs prepared by both the Employer and the association in the last round were extensive and professionally prepared. Since the pay research bureau was disbanded a number of years ago, it is challenging to accurately compare the work of the FI group with that done in the private sector and within the public service. Although both sides used survey data collected by professional survey groups, there was disagreement on interpretations. This challenge remains even though APSFA has and will spend significant resources securing a new collective agreement.
2. The Employer tends to have a cookie cutter approach to bargaining by offering the same level of salary and benefit enhancements to all groups regardless of the circumstances. Larger bargaining agents do not have more strength at the table although a bargaining agent should have significant financial resources to support the bargaining team. It is the strength and determination of the general membership that will be the key factor.
Conclusion
The general membership will choose a dispute resolution mechanism as part of a survey that will be conducted in the spring of 2004. The compensation and benefits committee will be providing additional communications over the next few months to provide information to the general membership. Notice to bargain with the selection of the dispute resolution mechanism will be provided to the employer in August 2004 and collective bargaining will commence in the fall of 2004.
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