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IS B.C.’s PUBLIC SECTOR BARGAINING MODEL BROKEN?

The teachers’ labour dispute in B.C. seems to be on a time out now that spring break is underway.  During this brief respite, it makes some sense to take a look at the current model of public sector collective bargaining.
 
I don’t think I’m alone in thinking that the public sector collective bargaining process is broken.  The challenge, of course, is to find ways to fix it.
 
To me, the teachers’ dispute demonstrates the worst failings of public sector collective bargaining, in which neither party is motivated to bargain.  Each has adopted an extreme position and seems determined to stick with it until the inevitable conclusion.
 
Because the employer is, effectively, the provincial government and because the government has the ultimate legislative authority up its sleeve, it knows it need not compromise.  And because the union knows the government will ultimately play that trump card, it has little motivation to compromise its own stance.
 
What has resulted is a seemingly endless public shouting match which will surely persist right up until the moment when the government enacts its legislation to end the matter.  The acrimony makes it seem like these parties should be in trenches and separated by barbed-wire rather than a bargaining table.
 
The issues at play in the teachers’ bargaining dispute are complex.  Precious few of us casual observers really have a grasp of those issues.
 
But because this bargaining is now taking place largely in public, many observers have taken loud, irate stands in favour of one side or the other.  Look at newspaper editorial pages over the last couple of weeks to see what I call the Don Cherry-fication of the bargaining issues.
 
Are teachers the hardest working people in our province or are they the biggest complainers?  Are they handsomely rewarded with benefits and time off or are they chronically underpaid?  Are they safeguarding the education of your children or are they just pushing our buttons using these sensitive issues?
 
All that seems to count is who has the highest soapbox and who can shout the loudest.  And in all that shouting, the important issues are lost.
 
Some of the blame for this lays, I’d say, on the fact that in these sorts of labour disputes we find a blend of systemic issues (such as class size and composition) and basic terms and conditions of employment (such as wages and benefits).  How is the average observer to separate these distinct elements of the debate or make any sense of how they are being linked in the bargaining process?
 
Then we have rulings by our province’s Labour Relations Board which are, for all practical purposes, indecipherable by the average person (including, it seems, the teachers themselves).  What’s the difference between a teacher displaying a sign for informational purposes and a teacher engaging in picketing?  Does anyone really care?
 
All of this leads me to wonder whether a better system exists.  I’m reminded of an announcement, in 2007, that the B.C. Ferry and Marine Workers Union had relinquished the right to engage in strikes.  That proposal came out of a process entered into by B.C. Ferries and the union to settle hundreds of issues outstanding after the expiry of their last collective agreement.
 
The parties submitted to binding arbitration on these hotly disputed issues and the arbitrator’s ruling established a new framework for that acrimonious relationship. The key element was the arbitrator’s acceptance of the union’s suggestion that future collective agreements be settled by binding arbitration.
 
Perhaps something similar would work for collective bargaining across the broader public sector.  If so, I’d suggest it should be based on five main principles.
 
First, because freedom of association and the opportunity to negotiate are important to our society, the parties would require a (time-limited) window in which to settle a collective agreement themselves.  Perhaps the 6 months leading up to the expiry of the current collective agreement would be sufficient.
 
Second, if a collective agreement was not attained during the bargaining window, the issues would automatically be submitted to binding arbitration.  The prospect of this phase would surely motivate the parties to bargain in good (better?) faith during the bargaining window.
 
The key, I think, is an arbitration process in which the arbitrator must select one party’s position or the other, not a compromise between the two.  This would motivate each party to advance a moderate (and thereby more attractive), rather than extreme, position.
 
Third, the arbitrator must be a person who is trusted by the parties, notwithstanding his or her appointment by the government, and in particular who is able to remain independent.  Is this even possible?
 
B.C. has already demonstrated that such a person can be found.  Our so-called “child watchdog”, Mary Ellen Turpel-Lafond (British Columbia’s Representative for Children and Youth) has proven to be an effective and independent voice.  I don’t see why such a “watchdog” couldn’t be found to preside over public sector collective bargaining.
 
Fourth, of course, the union would have to relinquish the right to strike.  In all likelihood, the mandatory arbitration process would eliminate the value of making aggressive public statements and so perhaps the right to strike would become a moot factor in any event.
 
Finally, in my view, the process must separate the discussion and resolution of systemic issues such as class size and composition from items such as wages and benefits.  If there are systemic problems with B.C.’s classrooms, I think that discussion can only productively occur when it is distinguished from the ongoing tug-of-war over wages and related benefits.  Perhaps, however, the same “public sector bargaining watchdog” could preside over the process addressing systemic matters.
 
Maybe a process of this type could become part of the collective bargaining landscape in B.C.  If not, the alternative may be to reinstate a form of corporal punishment (in which the students inflict pain on teachers and government alike).
 
Robert Smithson is a labour and employment lawyer, and operates Smithson Employment Law in Kelowna. For more information about his practice, or to subscribe to You Work Here, visit www.smithsonlaw.ca.  This subject matter is provided for general informational purposes only and is not intended as legal advice.