CONTRACT NEGOTIATIONS

WHY LABOUR TALKS TAKE SO LONG

By Alain Lajoie

Alain Lajoie taught at the Cree School Board in Quebec for 28 years. During that time, he was part of the negotiating team for the renewal of three collective agreements.

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Every year, similar headlines appear. All are related to negotiations of public-sector collective agreements. The process takes far longer than what is seen from the outside. Let’s take a closer look to understand why.

What follows are the various phases of the negotiation of a public-service collective agreement. The information is based on the negotiation of agreements for teachers in Quebec, but most of these steps are common in labour deals.

So, what is a collective agreement? They are contracts negotiated between a union and an employer. They outline working conditions, rights and obligations, salaries, and marginal benefits that link categories of workers and the people for whom they work. They replace any individual agreements between employees and employers. Collective agreements also have a lifespan and have to be renegotiated each time they expire.

STEP 1: THE BEGINNING OF THE BEGINNING

In bargaining, the union usually presents its demands first. But that’s not really the beginning. Demands have to be developed by consulting the union members. One of the first questions is how broad that consultation will be. Will it be targeted to solve specific problems, or will it be a full cover-to-cover review?

A cover-to-cover consultation is intense and takes time. It’s almost mandatory for a first negotiation, or if changes to the workplace have drastically altered the working conditions. These days, just about all consultations in large labour groups focus on specific problems. Once the type of consultation is selected, a team sets out the first consultation documents. Public-sector employees tend to be consulted on broad issues (for example, salary scales or parental benefits) that affect all workers, on sectoral questions (education/ health/government professionals), on matters specific to their occupation (teachers, nurses, support staff), and sometimes on issues emerging from their relationship with the local employer.

After the consultation documents have been filled out, either by individual members or in general assemblies, they are returned and compiled. Some potential demands may be rejected, and new ones added; all need to be prioritized for negotiations. Once the list of demands is set, it is time to write up what’s called the union deposit.

STEP 2: THE ‘PUT IT ON PAPER’ PHASE

The union deposit can be handled by clause and articles, or in problem-solving mode. Clause and articles is a very specific process and takes much longer to write up, but once an agreement is reached, the time needed to prepare the new collective agreement is much shorter. While it can be faster to reach general agreement in problem-solving mode, the time gained can be lost when drafts are written and the parties don’t recognize what they had agreed to.

Something that must be considered in the creation of any agreement is the language used in the text. Lawyers love legal language, as it has the advantage of using expressions that are clearly defined by law or jurisprudence. Although this warms their legal cockles, it may not be easily grasped by the layperson who has to understand the rights and obligations covered by the collective agreement.

On the other hand, a collective agreement written in plain language would seem easier to understand and apply. It may require interpretation from a labour judge during arbitration, however, resulting in an These days, just about all consultations in large labour groups focus on specific problems. unintended decision that is advantageous to one party.

Two concepts always appear in public- and privatesector negotiations: seniority and flexibility.

One reason employees like having collective agreements is that they prevent certain managerial temptations to take liberties on a variety of issues, like promotions or scheduling. That’s where seniority comes into play. Seniority is easy to explain, does not require interpretation, and is never arbitrary. It’s a preferred yardstick when it comes to deciding who will have priority. I am not saying that it is always the best yardstick, but it is a good one and requires no value judgment.

Employers always ask for more flexibility. No, it’s not in relationship to yoga. Rather, an employer may want to reserve the right to hire more part-time workers, to make overtime mandatory, or to accept lesser qualifications for a particular position.

Unions hate “flexibility.” Employers hate “seniority.”

STEP 3: LET THE NEGOTIATIONS COMMENCE

Either by legislation or as part of a collective agreement, dates are set on which the union will deposit its demand. On the appropriate date, the employees will present their demands, normally with brief explanations. The employer receives the demands, may ask a few technical questions, and that’s it for the first day.

Each side will have chosen a spokesperson who will communicate with his or her counterpart to deal with any issues between negotiation days. The second negotiation session is held to receive the employer’s counter-demands. The timing for this meeting is also set by law. The employer presents its offer. As in the previous meeting, the presentation is accompanied by explanations, and the union may ask simple technical questions.

At the beginning of negotiations, the parties explore the demands and counter-demands to define what is at issue. After having questioned the opposite side on what, exactly, their demands mean, the sides go back to their respective lairs to inform their members of the other side’s position.

Decisions are made on what may be negotiable, and what will be refused from the start. The next meeting will begin by listing the offers from the other side that are unacceptable. Both sides will be shocked and appalled that some of their essential demands are rejected.

After tearing the shirts off of each other’s backs, the sides will look at what may be achievable with what is left on the table, and the negotiations will commence. Technical amendments, like numbering of clauses to match legislation, or changes in practice, like the use of e-mail instead of faxes, tend to be adopted quickly.

Other demands that have little impact might be accepted, while others may be bundled together with requests from the other side, to maintain a certain balance. At times, completely new text has to be prepared to meet the needs of both sides. That’s where the fun starts.

Once a text is presented, the other side may see something of concern and ask for a recess. They discuss the text, then rewrite it and present it back. The new text may be acceptable or require the first side to ask for a recess, modify the revised wording, and present it again. This can go on for a while before producing a text that is accepted, initialized

by both sides, and parked until it is integrated into the final agreement.

By now, both parties will have withdrawn some demands, clearing the table to allow progress. Meetings are scheduled to look at particular chapters of the collective agreement and the demands from both sides on that topic.

In a perfect world, the sky is blue, the days are sunny, and both sides come to an agreement at this stage and ride off into the sunset.

This never happens.

Sooner or later, everything that can easily be agreed to has been agreed to – and neither party is prepared to budge on what is left on the table. In such a case, the union – after consulting with its partners – or the employers can ask for mediation.

STEP 4: MEDIATORS AND STRIKE MANDATES

During mediation, a mediator, normally named by the labour ministry, meets with the parties to try to get them to agree. He or she may observe a few meetings, meet with the parties separately, and propose avenues for moving forward. While all parties recognize that mediation may be useful, it is generally requested because it is a step the union is obliged to take before going on strike.

In a perfect world, the sky is blue, the days are sunny, and both sides come to an agreement at this stage and ride off into the sunset. This never happens.

A strike mandate is a weapon used to try to restart a negotiation, to re-establish a balance of power at the table. The employer could resort to a lockout, its equivalent strategy, but this is rarely used in the public sector. The quest for a strike mandate is not a decision taken lightly by unions, as a failure to obtain the mandate from the members sends the union back to the negotiation table with its pants around its ankles.

Most strike mandates exist for just a few days and are to be used when judged appropriate, but the use of strike days must be considered carefully. You don’t want to waste them, as they have a cost to members, but a strike day can also reinforce union solidarity.

STEP 5: BRING IN THE BIG GUNS

After being made aware of the union’s strike mandate, or after a day or two of walkouts, the employer’s side usually returns with some goodies. At this time, final, take-it-or-leave-it offers are presented and countered. The teams consult their members. Then the big guns are brought in. The president of the union that oversees the sector of activity may call the minister responsible, requests are made to the Treasury Board, push comes to shove, and lo and behold, the parties return to the table and reach an agreement in principle.

STEP 6: THE END IS THE BEGINNING

Now come the preparation and correction of texts. The changes to the collective agreement are incorporated, as well as changes that may have been made at other levels on issues like the retirement plan, parental benefits, job definitions, and salary scales. When the employer’s team is finished preparing the text, the union side rereads it. It is commonplace that parts of the text that haven’t been negotiated are corrected after a few more rounds of talks.

After this, all that is left to do is to sign the official copies. The collective agreement becomes official when signed by the minister.

And then, after debriefing and analysis, the cycle starts over again.