Bargaining
| Author | Christopher Rootham |
| Pages | 173-231 |
BARGAINING
A. INTRODUCTION
is chapter concerns the process of i ndustrial dispute resolution in t he federal
public serv ice, namely: colle ctive bargaini ng, conciliation a nd strikes, and i nter-
est arbitration. Before beg inning a disc ussion of the technica l and legal deta ils
of industrial d ispute resolution in the federal public se rvice, it is wort hwhile to
examine the h istorical, political, and economic context of barga ining in the fed-
eral public s ervice.
Collective bargaining in the public sector is qualitatively dierent than in
the private sector. e most importa nt factor disting uishing public-sector col-
lective bargain ing from the private sector is pol itics. Governments focus pri-
marily on publ ic opinion and the l ikelihoo d of re-election r ather than on prot
maximiz ation, unlike private sector employers. is is particu larly so at the fed-
eral level of government, where the ta x base is broader and more exible than at
the provincial or municipa l levels; in addition, wages and salaries of t he federal
government account for a smaller share of the budget tha n in provincial or mu-
nicipal governments. Like wise, public ser vice unions use t he strike weapon to
create public pressure on governments rather than to penalize their employer
nancial ly. Public service str ikes do not cost governments revenue and, on t he
contrary, can actu ally assist their nancial situation since they do not need to pay
their employees who are on stri ke. It has been suggested t hat political pressures
on the public employer act as a substitute for the economic pressu res to settle in
the private sector bargai ning model. ere are, however, countervailing politica l
pressures. e employer may be concerned about high wage sett lements setting a
Jacob Finkelman & Shirley Goldenberg,Jacob Finkelma n & Shirley Goldenberg, Col lective Bargaining in the Public S ervice: e
Federal Experience in Canada (Montreal: In stitute for Research on Publ ic Policy, )
at –.
173
174
precedent for priv ate sector wa ge settle ments, or for other levels of government.
is was one of the expressed pu rposes of the Public Sector Compensation
Restraint Act. While s ome public ser vice union s have achieved h igher-tha n-
average settlements, a government can not be expected to settle at any price.
As a result, public-sector lab our relations outcomes are the product of both
economics and politics. Bec ause of this politica l dimension to collect ive bar-
gaining in t he public sector, some commentators have gone so far as to contendcontend
that public sector collective bargaining is inherently anti-democratic. As Malin
states, those crit ics “suggest that al l issues discus sed at the bargain ing table are
political issues t hat should be decided in t he regular pol itical process, a nd they
consider it inappropr iate to give unions, wh ich they regard as one of ma ny inter-
est groups, a n avenue of access to public deci sion-makers that is not avai lable to
other interest groups.”
Malin argues that such concerns are misplaced because collective bargain-
ing does not eliminate t he inuence of other interest groups, and collective bar-
gaining helps even out a power imbala nce that inherently favours interest groups
other than tr ade unions, stating:
Concerns that publ ic sector collective ba rgaining undermi nes democratic gov-
ernment are misplac ed. When matters are not subject to collec tive bargaining,
they are deter mined uni laterally by t he employer aer input from various in-
terest groups. Labe ling a matter a ma ndatory subject of col lective barga ining
does not elimin ate the access of ot her interest groups to t he public decision
maker. e duty to barga in requires negot iation but does not compel the e m-
ployer to reach agreement wit h the union. Public ocials rema in accountable
to the public for the ag reements they reach, or fail to reach, w ith their employ-
ees’ unions.
As users and consu mers the public desires more and bet ter services at lower
costs. Labor co sts are the lar gest part of most publ ic-entity budget s. Con-
sequently, unions seek ing wage increa ses and other conce ssions that would
raise labor cos ts are at a disadvantage vis-à-vis every ot her interest group in the
budget-setting process. at disadvantage justies providing them with col-
lective barga ining as a special avenue of acce ss.
Ibid.
Gene Swi mmer, “Public- Sector Labour Relations in a n Era of Res traint and R estruc-Gene Swimmer, “Public- Sector Labour Relations i n an Era of Restrai nt and Restruc-
turing: A n Overview” in Gene Sw immer, ed., Public-Sector L abour Relations in an Era
of Restraint and Rest ructuring (Don Mil ls, ON: Oxford University Pres s, ) at –
[Swimmer ()].
M. Malin, “Public Sector La bor Law Doctrine and La bor-Management Cooperation”
in J. Brock & D. Lipsky, eds., Goi ng Public: e Role of Labor-Managem ent Relations in
Delivering Qualit y Government Servic es (Champaign IL: Indus trial Relations Re search
Association, ) at .
Ibid. at .
175Chapter Six: Bargaining
Collective bargaining could also be justied as producing a better public
service by encourag ing cooperation or co-deter minism between employees
and manageme nt. However, there is anot her, in some ways more f undamenta l,
justic ation of colle ctive bar gaini ng for employees of the federal publ ic serv ice:
collective bargai ning is a check on the arbitr ary exercise of power. Collective
bargaining i n the private sector — and the a ssociated statutory protect ions for
trade unions and thei r members — acts as a check against the arbitra ry exercise
of economic power. e law of contract, with its emphasis on freedom of con-
tract, does not ta ke into account the inherent power imbalance bet ween employ-
ers and employees: “the rel ation between an employer and an isolated employee
or worker is typicall y a relation between a bearer of power and one who is not a
bearer of power. In its inception it is an act of submission, in its operation it is a
condition of subord ination.” Collective bargaining acts as a check on this arbi-
trary exercise of power.
Once we accept the premise that the ar bitrary exercise of power is antit het-
ical to our modern conception of employment relations, then it falls to the op-
ponents of collective bargaining to demonstrate why it should not be available
to federal public serva nts. Does the potential for barga ining agents to impact
“political ” issues justify subjecti ng public servants to the arbitr ary exercise of au-
thority by their employer? Regard less of any individual v iews on the issue, in Par-
liament’s view, it does not — in light of its mandate to the Heeney Commit tee to
implement (rather than determine t he usefulness of ) collective bargaining, a nd
its subsequent decision to enact the Public Servic e Sta Relations Act in .
e review of the law concerning i ndustrial d ispute resolution contained
below is a review of the law as it stood at the date of publication. As of that date,
in the federal public ser vice. While the PSLRA (and its predecessor, the PS SRA)
contained the basic ru les for bargaining , those rules have f requently been set
aside by special legislat ion limiting the right to strike, a rbitrate, or even collect-
ively bargain.
Most observers consider that publ ic sector barg aining ha s gone throug h at
least three sta ges of development and that we are probably in a fourt h stage of
development, the precise detai ls of which are not yet known. e r st stage re-
ects the “expansiona ry” years ( to or ). During t his period, there
was a transformation in publ ic sector labour relations. e period was marked by
the adoption of the PSSRA, enabli ng collective barga ining in the federa l public
ser vice. I nitia lly, th is was p art of the spre ad of col lecti ve barg ainin g to prov incia l
P. Davies & M. Freedland,P. Davies & M. Freedland, Kahn-Freund’s Labou r and the Law, d ed. (London, Stevens,
) at . Cited with approval in Wallac e v. United Grain Growers Ltd., [] S.C.R.
at para. .
Public Serv ice Sta Relations Act, , S.C. –, c. [PSSRA , ].
To continue reading
Request your trial