A labour relations board hearing this week could mean a breakthrough in the months-long dispute between the union and the federal government, say legal analysts and the striking diplomats’ union.
Even so, Tim Edwards, president of the Professional Association of Foreign Service Officers, is trying to tamp down expectations, saying the hearing won’t necessarily be the “be all and end all.”
If the board’s decision isn’t satisfactory, observers say, it could mean a continuation of the union’s roughly three-month-long rotating strike, or the possibility of the government enacting back-to-work legislation.
“It could be a breakthrough in resolving the matter,” said Paul Champ, an Ottawa-based lawyer who has represented many federal public service unions. His focus includes labour and public interest law.
“Unfortunately, I think if the board dismisses the complaint, it could be a long time before this dispute is resolved.”
John Craig, a professor of labour law with Western University’s law faculty, agreed that “it could be the event that brings the parties together and gets them to come to a resolution; when everyone is in that hearing room...sometimes that does the trick.”
The Public Service Labour Relations Board is set to begin its hearing on Aug. 21 on the bad-faith bargaining complaint that PAFSO filed against the government on July 31. The union alleged that the Treasury Board “knowingly and intentionally demanded conditions for binding arbitration that could not reasonably be accepted.” The conditions would have “predetermined the arbitration decision,” it goes on to state.
Mr. Champ said it would come down to whether the government was acting in bad faith by trying to impose the condition that an arbitrator could not compare foreign service officers and other job classifications.
Mr. Edwards said he thinks the hearing would last one or two days.
PSLRB spokesperson Susan Mailer said while the board’s general standard is that a decision could take up to four months, it will likely be quicker in this case.
Mr. Edwards said he expects a decision would be delivered in days, not weeks.
There will be one board member hearing the case, with representatives from both sides present.
Richard Fader of the Treasury Board of Canada Secretariat will be the government’s legal representative at the hearing.
From PAFSO, Mr. Edwards, executive director Ron Cochrane, and the union’s lawyer will be among those attending.
What could a hearing mean?
Mr. Edwards said the board has a simple question to evaluate: has the government been bargaining in bad faith?
He said the board could throw out the complaint by agreeing with PAFSO’s argument but encouraging the two sides to get back to the table and negotiate. Or, he said, it could order the government into binding arbitration with or without preconditions.
“If a decision is made that there was bad faith bargaining, but [the board] doesn’t compel us or order us into binding arbitration, or if [the board] doesn’t find that there’s bad faith bargaining, the strike is still on,” Mr. Edwards said.
“We have said...we ask you to order both sides back to the bargaining table and we will even accept the three conditions that we have already accepted to Treasury Board in our correspondence with them.”
He said both sides could appeal the ruling of the board, adding that PAFSO would stop striking if the two sides were to enter into an arbitration process.
The board could also direct the government to consider, evaluate, and engage with PAFSO on the issue that is of concern to the union—being able to compare foreign service officer positions to other job categories, Mr. Champ said.
But some say they don’t think the board would order the two sides into binding arbitration.
“Probably the most impactful remedy would be the imposition of a process for resolving the dispute and achieving an agreement, which would be arbitration,” Mr. Craig said.
But he thought the board might be reluctant to do that, unless they’re convinced that the only way the parties will ever reach an agreement is through arbitration.
“The reason why is because labour boards want to promote free collective bargaining, they want the parties basically to bargain themselves.”
A decision that would facilitate the continuation of bargaining, but wouldn’t order the government to table something, would be a more likely outcome, Mr. Craig said.
Examples of other outcomes would be for the board to: declare that one side has done something wrong; tell the government that if it were to retable an offer, it cannot tie certain conditions to it; or say that one side has committed a violation and then urge the two sides to continue collective bargaining.
“They’ll use everything in their disposal to encourage and persuade,” Mr. Craig said.
“There’s a lot of persuasive value in how the board behaves and how the board resolves its cases, even if it doesn’t order the parties to do something.”
The board will also be aware of the public’s opinion on the issue and the impact on those wanting to enter Canada, Mr. Craig said.
“That may veer them over to being more interventionist,” he said. “Never lose sight of the public interest and how that public interest may [have an] impact on the board’s view of this.”
George Smith, a fellow at Queen’s University’s School of Policy Studies, said binding arbitration—either as part of back-to-work legislation or otherwise—is really the only other option to resolve the dispute if one of the parties does not concede.
He said it’s normal during such talks that one side will accuse the other of bargaining in bad faith.
“The reality is that saying no is not bargaining in bad faith, but some parties think it is,” said Mr. Smith, who is also an adjunct professor with the university’s school of industrial relations.
Ms. Mailer said the board tends to work in a collaborative fashion with the parties. They could move the hearing into a mediation-arbitration-type process where the parties leave the hearing room and go off with the board member and work to find a solution.
In this scenario, no decision would be issued.
If the talks break down, they would go back to the hearing and continue to work towards a more formal decision, Ms. Mailer said.
Mr. Champ said it would be hard to predict the outcome.
“I don’t think that this is a slam dunk case, but I think it’s a strong case.”
If the complaint is dismissed, the parties will just “keep knocking heads,” Mr. Champ said.
“It could get messy, but I think that PAFSO recognizes that their members deliver an important service to the Canadian public and others around the world, so they don’t want to completely shut it down,” he said.
Andrea Mandel-Campbell, spokesperson for Treasury Board President Tony Clement, wrote in an email that the government remains “open to a resolution that respects the interests of both taxpayers and Foreign Service union members.”
“Since July we have reached tentative agreements with three other unions. In all cases the bargaining agents were willing to reach fair and reasonable settlements.”
Back to work legislation
The government can’t lock its employees out under the Public Service Labour Relations Act, Mr. Edwards said. The trade-off is that unions would have to sign essential service agreements with the government before entering into a legal strike position.
Yet, while the Harper government has shown in the past that it is not averse to passing back-to-work legislation, if it were going to pass such legislation it would have already done so, said Mr. Smith.
“Why would they have allowed all the time to pass and all the inconvenience that seems to be growing as these workers extend their strike?” he said.
It isn’t something they would do frivolously, said Mr. Smith.
He said if the government were to enact back-to-work legislation, it would make for an unusual situation.
“They’re very quick to criticize Air Canada or Canada Post or other companies when they can’t reach a settlement and they impose a settlement on them,” Mr. Smith said.
“Now they find themselves in the position of [being] the employer and they’re part of the back to work legislation, so that’s also an unusual situation, where...the employer and the legislator are the same.”
It could also create some tension in the workplace, he said.
“You can only imagine the...bad employee relations that are generated by that.”
Mr. Smith said the government could impose a settlement on the union as part of the legislation, a move he would consider quite draconian. A more likely scenario would be for the government to send union members back to work and impose binding arbitration that could come with conditions advantageous to the government.
“The biggest risk here is that for a relatively small group of people, it’s a high profile group—the government will come under some scrutiny in the labour relations community and in the broader union management community in terms of how they handle these situations with their own employees.”
Mr. Edwards said he does not see such legislation as being a strong likelihood at this time.
Prime Minister Stephen Harper announced on Aug. 19 that Parliament likely wouldn’t sit until October. The prime minister said he would ask the governor general to prorogue Parliament. The Throne Speech would then be delivered in October.
“By then, assuming that we aren’t compelled into binding arbitration and our service withdrawals continue, you’re talking about another two months of severe and mounting impact on the Canadian economy,” Mr. Edwards said.
“If the government wants to take that route, fine, but when they have applied back-to-work legislation, they have referred the matter to binding arbitration, so they might as well accept it now instead of just doing that two months from now.”
sduggal@embassynews.ca
@snehduggal
