Back to the Collective Bargaining Table

The pandemic upended many things about our lives, both in our personal lives and in our workplaces. Collective bargaining was no different. Early in the pandemic, bargaining almost ground to a halt while everyone waited to see what was going to happen; we turned our attention to remote work, vaccine mandates and accommodations. Eventually, we had agreements expiring and had to bargain. Some parties rolled agreements over with little change for a year, hoping it would be over by then. It wasn’t. We have all had to face the reality that we have to negotiate, we have to address important issues, and we have to find a way to do that.

We started bargaining virtually. Zoom, Teams and Webex became important tools, and to our surprise, agreements were reached and it worked. Somehow. It wasn’t our first choice, but we found a way.

Now, with governments everywhere reducing or removing restrictions, it appears that we’re heading back to bargaining in person. At a real table instead of a virtual one. But even if we’re planning in-person negotiations in the near future, we’re not returning to “normal” – that’s still a ways off. We will need to transition, effectively, from a flat screen to sitting across from each other, in three dimensions, for the first time in a few years.

Here are some ideas and considerations to help with that transition.

1.    Plan the bargaining process, jointly, well in advance

In addition to the best practices about establishing ground rules for bargaining, such as data sharing, exchange of proposals, scope of bargaining, etc., there should be clear and detailed agreements around the health and safety of the process specific to COVID. Regardless of anyone’s views of vaccines and mask mandates, many of us have lived with some level of fear and concern of being in a room with other people. That isn’t going to disappear overnight. The more clarity everyone has about the process, how it will be run, what the safety protocols are, the more everyone can relax and focus on why we’re here – negotiating a collective agreement. Establishing the process clearly is best done jointly, and best done weeks before the parties are at the table. This should include clarity on:

  • Location and layout: Where will we meet? How large will the main room be? Will we be socially distancing, and if so, how? Do we need masks for walking in the halls or into the room? How long will joint sessions be? Is there good ventilation in the rooms we’ll be using?
  • Other protocols: In addition to these basic but important questions, what are the protocols we can all agree to if someone appears to have symptoms? What will happen if someone has come into contact with a person who then tests positive? What are we committing to disclose?

The more clarity all parties have around what to expect and what has been agreed, the more productive the bargaining process will be. Bargaining effectively requires focus, and only by first addressing health and safety logistics clearly and directly will everyone be able to focus on the negotiations themselves.

2.    At the table, make extra effort to keep all parties engaged

To make sure everyone stays focused on the issues, each party should make sure they are engaging both their own team members, as well as the other team’s members, effectively. This can be accomplished in a number of ways:

  • First, make sure your own team is paying attention and contributing. This is best done by giving each team member specific duties or activities, such as presenting information on an issue that affects their work area, responding to the other party’s presentation, and using their knowledge and expertise actively at the table. Many chief negotiators seem to live in fear of their own team participating, afraid they may say something “wrong”. We all need to get over this. Accessing the knowledge and experience of our team brings far more benefits than risks. As we sit together at a real table after so much time in isolation, this type of engagement is even more important.
  • Secondly, ask both parties to commit to open discussion and dialogue on every issue. To do this, create “dialogue time” on each issue where parties agree no commitments are or can be made. Use this time for free-wheeling ideas and solutions to be put on the table without fear of committing to anything. The more open dialogue the parties can have, the more engaged everyone will be. And you’ll get far better outcomes, as well.
  • Finally, take more breaks. Do not stay at the table for hours and hours at a time. Meet jointly, address and have open dialogue on a couple of issues, then break for a short time and return. This pattern of shorter joint sessions (perhaps either side of an hour) at the table, then caucus for half an hour, then back to plenary, is a good way to keep energy, focus and momentum in the negotiations. It will help everyone relax into the process, and to build and strengthen their bargaining muscles quickly.

3. Expect unusual responses

The fact is, we’re all a little bit twitchy, a bit jumpy, when it comes to suddenly working face-to-face after all this time in some form of distance and isolation. That’s normal. Our resources for social interactions are depleted. This means that someone, likely more than one person, will react out of proportion to something that happens during bargaining. They will feel the pressure and lose their temper over something, large or small. They will make an inappropriate comment. They will dig their heels in on a seemingly unimportant item. Expect this, and give everyone some of the benefit of the doubt. Instead of reacting equally over the top, take a breath.

Assume best intentions as much as you can. Stop and respectfully name what you see happening. Give them some space to reflect and think about what’s going on for them. Help them prevent the issue or behaviour from escalating. Believe me, you will also need some of that coming back the other way, too!

4. When negotiations are over, do a joint debrief with the other team

This is a best practice that successful parties do anyway, pandemic or not. But now, it takes on an added layer of importance. After a deal is reached and ratified, spend an hour or two with both bargaining teams and talk openly about what worked in the process, and what didn’t work. Discuss what took place and share perspectives.

Take the time to write this all down, capture it, so next round both parties have clear ideas on how to make the bargaining even more effective at the table. This will not only help both teams see the process from the other’s perspective, it will also improve the implementation of the deal just reached. And it will minimize negative assumptions that are often the cause of ongoing friction in the union-management relationship.

Summary

We have an amazing opportunity to take a hard look at how we have bargained in the past, and how we can actually “build bargaining back better”. We have the chance to negotiate better, to use this as a fresh start to actually improve how we bargain. We should never let a good crisis go to waste, as they say, when we have the opportunity to make this important process better all the way round.

About the Author

Gary Furlong

Gary Furlong has extensive experience in labour mediation, alternative dispute resolution, negotiation, and conflict resolution.  Gary is past president of the ADR Institute of Ontario, is a Chartered Mediator (C. Med.) and holds his Master of Laws (ADR) from Osgoode Hall Law School.  He is the author of The Conflict Resolution Toolbox, John Wiley and Sons, Second Edition 2020; the co-author of BrainFishing: A Practice Guide to Questioning Skills, FriesenPress 2018; and The Sports Playbook, Routledge, 2018. Gary has delivered collective bargaining negotiation skills training for both management and union bargaining teams, bringing a strong focus of effective and collaborative skills to both parties. Gary specializes in leading joint bargaining training for intact negotiation teams just prior to negotiations, with a focus on helping parties maximize joint gains at the table. He also conducts relationship building interventions to strengthen day-to-day union-management effectiveness away from bargaining.

Gary Furlong is the lead facilitator for the Queen’s IRC Negotiation Skills and Managing Unionized Environments programs.

A Futurist’s Look at IR/HR – Why it’s Time to Start Over

Peter Edwards delivering the 2015 Don Wood Lecture in Industrial RelationsThe 2015 Don Wood Lecture was delivered by Peter Edwards, Vice-President Human Resources and Labour Relations at Canadian Pacific. In the lecture, Peter spoke about the future of work, including the changes that are taking place in organizations as new technology emerges, how these changes affect workers (particularly unionized workers) and how the HR and labour relations processes, like collective bargaining, need to evolve.

Topics include:

  • How technology (notably cellphones/smartphones) have changed the way we live, and will continue to change the way we live (ie: self-driving cars).
  • How automation in certain industries will replace human workers (including in the railroad industry) and the far-reaching impact this will have.
  • The need to change the collective bargaining process and new techniques for negotiating collective agreements, including the author’s personal experience.
  • Change management and the need for organizations to continue to change and evolve to stay alive in the future.

The Don Wood Lecture in Industrial Relations was established by friends of W. Donald Wood to honour his outstanding contribution to Canadian industrial relations. Dr. Wood was Director of the Industrial Relations Centre from 1960 to 1985, and the first Director of the School of Industrial Relations, established in 1983. The lecture brings to Queen’s University distinguished individuals who have made an important contribution to industrial relations in Canada or other countries. Peter is the first Don Wood lecturer to be a graduate of the MIR program that Dr. Wood established. Fall 2015 marked the 30th anniversary of Peter’s graduation from this program.

4 Strategies for Collective Bargaining in Today’s Economy

We have entered a challenging and difficult time for collective bargaining for both employers and unions. Shortly following the great recession in 2008, both management and unions reached deals relatively quickly, everyone recognizing the dramatic economic issues the parties faced at the time. From 2008 well into 2012, there was little change. Employers tried to deal with the reality of the recession, and unions waited for the anticipated rebound, assuming it would resemble almost all recessions of the past – a difficult period, a holding pattern for a short time, followed by a return to growth in the economy and a resumption of “normal” bargaining. This time, however, that hasn’t happened. Certainly not in the way it has in the past.

The economy has, at best, rebounded to the level of “treading water”, and bargaining has not returned to anything resembling “normal” for the last 30 years. Organizations are looking for zero wage increases, looking to fund increases from savings within the agreement, and looking for amendments to benefits and pension plans as well. These are challenging and difficult issues, so how can negotiators achieve deals that can be ratified? How do union and management bargaining teams navigate these issues when the economy has stagnated? At times when government revenue is anemic, deficits are up, and private sector profits are much lower than normal? At times when unemployment is steady, but steady at a level that is over 3 percent higher than in the United States? At times when manufacturing jobs, long considered the backbone of a strong economy, have disappeared with few signs of rebounding?

Navigating a Difficult Bargaining Environment

During these times, there are some approaches to bargaining that negotiators on both sides of the table should consider when planning a bargaining strategy, approaches that may make the difference between stalemate and success:

  1. Avoid letting bargaining drag on for months, even years.
    It’s common in this type of environment for one or both parties to slow down negotiations, meet less frequently, presumably on the hope that the business environment will improve over the 12 to 24 months of bargaining and a better deal for one or both will be had. This is often counterproductive. Frustration builds within the membership, uncertainty builds for management, it can end up taking two years to agree to a deal that could have been reached far earlier, and with less frustration for all. And worse, when a deal is finally signed, bargaining starts all over again almost immediately – with parties already drained from the last two years.
  2. Separate the monetary from the non-monetary.
    While this is pretty standard advice, it is often honoured in the breach more than not. In other words, when there is money to reach a deal, the non-monetary is often given less attention than the monetary, or worse, one is simply traded for the other. In a low-growth economy, parties should truly focus on the non-monetary on their own merits, explore the reasons for cleaning up and improving language, simplify the collective agreement, and make it clearer and more workable for all. Just the fact that the parties succeeded in making changes and improvements for both members and management can make it much easier for parties to accept and sell difficult monetary agreements.
  3. Keep bargaining simple and focused on the essential issues.
    Many negotiators overload their proposals in the hope that they can be used as “traders” for movement on wages and benefits (or on other items they see as important). In reality, overloading the plate with issues that are at best a medium or low priority simply muddies the water, and makes real change harder. This is an environment when real and focused time can be brought to bear on workplace issues that have great value to members and organizations alike – use this environment to actually dig deep on the small number of important and long-standing issues. Since the monetary side is operating in a much more limited range, there should be time and energy for some of the issues that have been pushed off to the side for too long.
  4. Use a more Interest-Focused approach at the table.
    No, I did not say start using Interest Based Bargaining (IBB). IBB works for some organizations, and the more power to you. I’m referring to an approach at the table that focuses not just on the positions of each party, but on the underlying reasons and needs of each party, as an invitation to find better and more creative solutions at the table. In times of plenty, positional bargaining seems to end with solutions everyone can live with (even if it does nothing for building the union-management relationship). When times are tough, however, positional bargaining tends to entrench parties in a far more emotional way, often ending in bitter fights over very small issues. This is a Lose-Lose scenario. Keep each other honest at the table by making each party rationalize their positions, bring good data to support their views, and most importantly to challenge each other to find solutions beyond the starting positions that each party brings forward at the beginning of the process.

Overall, bargaining in difficult times is, well, difficult. But it is also the time when bargaining relationships can change for the better, where mutual collaboration to get a deal is virtually required, and the (sometimes) lost art of joint problem solving can be re-discovered. Challenge each other to get out of the trenches and work together to solve some the issues that our current environment has brought us. In this case, it takes both parties to solve these issues – there is no winner take all.  Unless it works for both parties, it works for none.

 

About the Author

Gary Furlong

Gary Furlong has extensive experience in labour mediation, alternative dispute resolution, negotiation, and conflict resolution.  He has delivered collective bargaining negotiation skills training for both management and union bargaining teams across Canada, bringing a strong focus of effective and collaborative skills to the table. Gary also conducts relationship building interventions to strengthen day-to-day union-management effectiveness away from bargaining. He has worked with a wide range of companies in the private sector, in the public sector with municipalities, provincial governments and the federal government, and with unions including Unifor, Teamsters, CUPE, ONA, OPSEU, and PSAC. Gary is past president of the ADR Institute of Ontario, is a Chartered Mediator (C. Med.) and holds his Master of Laws (ADR) from Osgoode Hall Law School.  Gary is the author of The Conflict Resolution Toolbox, John Wiley and Sons, 2005.

Gary Furlong is the lead facilitator for the Queen’s IRC Negotiation Skills and Managing Unionized Environments programs.

Exploring Senior Leadership in the Canadian Mental Health Association

Clark MacFarlane, Executive Director, CMHA – Cochrane-Timiskaming BranchClark MacFarlane has over twenty years of experience in the health care sector, and is currently the executive director of the Canadian Mental Health Association (CMHA) – Cochrane-Timiskaming Branch, in northern Ontario. CMHA branches provide direct service to people who are experiencing mental illness, and to their families. They are in the process of implementing a new service delivery model, which shifts from traditional treatment methods to a recovery approach.

In this interview with Queen’s IRC, Clark discusses the funding challenges of being an incorporated charitable organization almost completely dependent on government funding, the difficulty in building the talent pipeline in northern Ontario, and the struggles that come with leading an organization with multiple sites. He opens up about the rewards and challenges of managing in a unionized environment, the cultural shift that happened when the union came in, and the lessons learned in the first round of collective bargaining. Clark talks candidly about what they could have done better in change management, and the steps he takes to create a healthy work environment with happy and engaged employees.

Improve Your Negotiation Outcome By Learning Something New: A Collective Bargaining Success Story

 A Collective Bargaining Success Story Most people are familiar with the old adage that defines true insanity as doing the same thing over and over again, and expecting a different result. Then why, in labour relations, do we continue using the same processes and methods that have not yielded positive results for us in the past? Well, some parties have learned this lesson and are trying new approaches in their search for win-win outcomes of negotiation.

As a labour relations mediator, I have had the pleasure of working with parties who have realized that they cannot continue doing the same thing over and over and expect different results. This is a mediator’s account of how two parties to a collective agreement did something different. It is a story of how they learned new processes and skills to achieve outcomes that supported their collective priorities and interests. The improvements they saw were not just in the outcome of negotiations, but also in their ability to weather conflict and resolve disputes during the term of their collective agreement.

A Confrontational History

The characters in this true story include a composite fire department and the administration of a small township. The relationship had soured years ago and no one knew quite how to get it back on track. Actually, no one was trying to get it back on track, likely because of the fear of being perceived as favoring the other side. Why would a union member want to have a better relationship with management if they didn’t sympathize with the employer and were looking for a promotion? Why would an employer agent want to have a better relationship with the union? He must not care about the municipality’s priorities and ability to pay. Each party acted in a manner that served its own interests, to the exclusion of the interests of the other party.

This municipality and its firefighters’ union hadn’t negotiated their own collective agreement in many rounds of bargaining. Interest arbitrations are mandatory and binding in the fire sector under the legislative framework in New Brunswick. It could take up to two years after reaching an impasse to schedule, hold the hearing and get a decision back from the arbitrator. Being a small local, it was difficult for members to pay for the immense expense of interest arbitrations and so many fees over the years were paid out of members’ pockets. Four years of union dues during the term of a collective agreement often wasn’t enough to pay for the union side’s fees for the arbitration and their own legal fees.

The Seeds of Change

The municipality had recently experienced a change in command at the Chief Administrative Officer level, which brought along with it all sorts of questions, like, “why are we doing this?”, and “isn’t there a better way?” The CAO asked tough questions and persisted in an attempt to understand what was causing difficulties. He eventually contacted me, a third-party neutral, for help. Two years prior, the parties had received an interest arbitration but couldn’t agree on how it was to be interpreted. Both parties refused to sign off on their arbitrated collective agreement, yet did not wish to resubmit it to the arbitrator with all of the potential associated costs. The union was also open to trying something different, so the parties agreed to come to the table for mediation.

Initially, the parties wanted to stay in separate rooms during the mediation. This often poses a difficulty for mediators in that the parties do not get to experience their own negotiations first-hand. Relying on the mediator to carry messages from room to room removes an important aspect of communication between the parties and does not contribute to their continued success in the absence of that third-party.  I was able to convince the participants to keep everyone in the room and allow only me to ask questions (which, of course, were carefully prepared in advance with the parties). What a difference in how questions are received when they come from a third party who has no interest in the outcome of their dispute!

A few hours later, they began speaking to each other instead of me and were able to resolve the issue that had prevented them from signing their collective agreement for two years.

The mediation process introduced the parties to a new methodology and skills for negotiations; ones that was based on an honest exchange of dialogue instead of attempts to impose one’s position on the other party. The mediation wrapped up with a discussion about interest based negotiations and the benefits of effective labour management committees.

Improved Outcomes

Building on the success of these facilitated discussions, the parties agreed to attempt interest-based negotiations. The process took one third of the time of their historical negotiations and they successfully ratified the agreement with over 90% voting in favour on both sides of the table. They creatively resolved many issues that had been plaguing them for over a decade, and which had often remained status quo in an interest arbitration. The parties had even agreed to new methods and ideas for exploring resolutions to other issues during the term of their new collective agreement. Key outcomes included a major pilot project, renewed commitment to their labour-management committee, and an economically viable agreement that was equally rewarding for members.

What had changed for these parties? How did a change of process yield an outcome that had been so elusive for many years? Together, they began to realize that doing the same thing over and over and expecting a different result was plaguing their relationship, draining their resources, and leading to outcomes that were undermining the interests of both parties. This was a journey of learning new processes and developing new skills in negotiation and communication. The ones they had been using for so long just weren’t working.

We then started work on the labour-management committee, establishing terms of reference, practicing effective table behaviours and equipping the members with tools for having difficult discussions without devolving into a spiral of name calling, grievances, arbitrations and formal complaints to regulating bodies. The parties acknowledged that the latter was a drain on their resources, which could be better used in resolving their differences. An improved forum for in-term disputes emerged from what used to be seen as a “union-ask and management-deny” committee which served only to produce further documentation of their disputes.

They seem to have maintained the momentum in their new relationship and find that it is much more effective in getting what they need from each other. They seem to have stopped their endless ‘demands’ to each other and approach their issues with a commonality of interests, a united front against the problems that plague their operations. That is not to say that the relationship will not be difficult. There may be arguments, there may be conflicts, and there may be misinterpretations. There may be grievances and arbitrations and complaints; these things all serve an appropriate purpose after all. They may return to using a more traditional method of bargaining with proposals and counter-proposals. But they will be doing so with new communication skills and a knowledge that improved dialogue can lead to improved outcomes, regardless of the type of process they use. They are now able to see the other’s positions as a means to meet their interests, and effectively communicate this vision around a table, or across one.

Learn Something New So You Can Do Something Different

As a mediator, I recognize that interest-based bargaining is not for everyone, nor for every type of conflict. Some parties aren’t comfortable with the interest-based bargaining process, preferring more traditional ones. Whatever process you use, take note of the old adage; if it doesn’t work, do something different. Learn to listen better, take a course in negotiation skills or conflict resolution, use a third-party, talk with others in your profession about what works for them, and how they solved difficult problems. Build your repertoire of skills and processes and study the circumstances under which each might be effective. Improve your negotiation outcomes by learning something new so that you are able to do something different when the time comes.

About the Author

Jennifer Davis is formerly the Assistant Director of Human Resources for the Department of Education and Early Childhood Development in New Brunswick. She has over 10 years of labour relations experience, having negotiated public sector collective agreements. Since 2011, Jennifer has worked as a Conciliation and Mediation Specialist with the Province of New Brunswick. As a third-party neutral, she works with employers and unions in the private, public and quasi-public sectors offering formal and preventive mediation services.

Jennifer holds the Queen’s IRC Labour Relations Certificate and has completed two National Mediator Training Programs through a partnership between the Federal Mediation and Conciliation Service and Provincial Labour Relations agencies.

Strategic Grievance Management in Today’s Unionized Environment

Strategic Grievance Management in Today’s Unionized EnvironmentThe word “strategic” gets thrown around pretty loosely these days – it’s one of those business buzz words meant to instill confidence that we’ve thought this through and it’s all under control: trust us, we’ve got a strategic plan!

But there’s more to it than just calling something “strategic”.  The term “strategic” implies there is a thoughtful, organized strategy guiding your efforts; that a particular issue has been viewed in the broader context and your decision to proceed is based on the impacts that decision will have across the organization. More so than any other time in history, employers in today’s unionized workplaces need to view their union-management relationships, and their dispute resolution efforts, through a holistic, strategic lens. We can no longer afford to deal with issues and complaints in isolation. As bargaining agents become more sophisticated in using dispute mechanisms to further their corporate agendas, so too must employers.

There are three key elements to being strategic about conflict management:

  • Know where you want to be 3, 5 and even 10 years out in terms of your relationship with your bargaining agent partners;
  • Develop dispute resolution mechanisms and goals that help get you there; and,
  • Keep your eye on the end game – don’t be distracted along the way.

Analyze your response to each conflict or grievance in light of your future goals, and ask yourself the following questions:

  • What does this grievance tell us about the state of our relationship(s) at the local level?
  • Is the grievance really just an individual dispute, or does it represent a matter of principle to either party?
  • How is this grievance connected to other issues or disputes in the workplace?
  • Will settling (or pursuing) this grievance get us closer to (or divert us from) our longer term goals?
  • Might our response to this grievance jeopardize our relationship with the union?
  • Can we resolve the grievance in a way that results in an incremental change that will ultimately get us where we want to be?
  • Is this the right fact situation on which to arbitrate the issue – should we settle this and look for a more favourable set of facts to put before an arbitrator?
  • Could settling this grievance in the union’s favour represent an opportunity to trade off for something that is more important to the employer?
  • Rather than pursuing arbitration on this grievance, would we be better served by dealing with the underlying issue through dialogue with the union, whether through regular/standing union-management committees, or more formal mediation processes?

As valued strategic partners, labour relations professionals must be accountable for assisting clients to manage relationships with their unions. So make sure you’ve considered all the implications of a decision to settle, mediate or arbitrate – there’s just no sense settling a grievance if all it does is result in less clarity and further conflict. Look at every conflict as a potential opportunity to improve the relationship between the parties, or provide clarity to the principles and rules that govern the workplace. Now that’s strategic!

About the Author

Lori AselstineLori Aselstine has over 33 years of experience with the Government of Ontario, most of which was in the human resources (HR) field. She held positions such as director of Ontario Public Service labour relations, director of Broader Public Sector labour relations and director of strategic human resources business. During her time with the Ontario Public Service, Lori established a reputation as a skilled relationship-builder and problem-solver. She retired in 2014 to work full-time on her organic farm.

Labour Relations in Canada: The Changing Landscape of Collective Bargaining after Ontario (A.G.) v. Fraser

 The changing landscape of collective bargaining after Ontario (A.G.) v. FraserFollowing the decision of the Supreme Court of Canada (SCC) in Ontario (A.G.) v. Fraser (Fraser), there has, predictably, been widespread speculation as to its eventual effect on the labour relations landscape in Canada.  A departure from other recent SCC case law, Fraser found that there was no constitutional guarantee for any specific form of labour relations or collective bargaining regime.  Even if the decision was significant in shaping Canada’s constitutional framework for collective bargaining, any tangible effect on labour policy has yet specifically to materialize. That said, there has certainly been a shift in the discourse concerning labour relations, labour policy, and the role of unions in Canada, and certain recent policy initiatives suggest that broader change may very well be coming.

This article highlights some of those initiatives, discusses how Fraser laid the groundwork for them, and considers what they could mean for the future of labour relations in Canada. In doing so, this article first traces the jurisprudential treatment of labour relations policy since the SCC decision in Health Services and Support – Facilities Subsector Bargaining Association v. British Columbia (BC Health) – the immediate constitutional precursor to Fraser. It then reviews a number of post-Fraser policy initiatives, the effect they have on the labour relations landscape, and their potential implications for the future.

Implementing an Interest-Focused Collective Bargaining Strategy

Implementing an Interest-Focused Collective Bargaining StrategyI was a professional Fire Fighter in the International Association of Fire Fighters (IAFF), for many years before I got directly involved as a member of our Local’s negotiating team. Although I was always interested in our Association’s activities, and I regularly attended meetings, I never considered myself “involved enough” to run for any committee or executive position for those first 15 years of my career.

I’m not certain that there was any particular event that piqued my interest in becoming a member of our Local’s negotiating team, but I was frustrated over the regular cycle of failed negotiations and expensive interest arbitrations. It seemed to me, from the outside looking in, that history kept finding a way of repeating itself and that perhaps I could bring about some change to the process of negotiations.

As a newly elected member of our Local’s negotiating team in the mid 90’s, I eagerly approached every opportunity to learn about the issues and process as we approached a fresh round of negotiations. I was immediately taken aback with how often the question of “why are we doing that” or “why are we asking for that” was answered with “because it’s the way we’ve always done it.” It made no sense to me. The way we had always done it typically led to an impasse and, with strikes and/or lock-outs prohibited, we were then on to interest arbitrations. The inability to negotiate our own deal came at a great cost for our Local and municipality from both a financial and relationship perspective.

Public sector negotiations in Ontario were particularly contentious during these times, as the social contract years were coming to a close. The ruling provincial NDP government had frozen public sector wages in 1993 and labour organizations at both the provincial and municipal levels were anxious to make up for lost time. After suffering through several years of a wage freeze, the experienced members of our negotiations team were ready for a tough fight and the battle lines were drawn. Both sides took a hard-lined, principled approach to bargaining. I was puzzled by the lack of real communications and found the experience to be extremely frustrating.

After two rounds of negotiations on the Association’s side of the bargaining table, and before I could affect any change, I was promoted into a Senior Officer’s position and soon found myself on the other side of the table, as a member of the City’s bargaining team. Much to my dismay, I quickly discovered that I was right in my assumptions and that my new team utilized the same tactics and functioned under a similar philosophy to the Association’s. Both sides were stuck in their old ways, unwilling to change regardless of the cost. Intelligent, well-intentioned people were unable to change, in spite of the fact their battle-tested ways were not producing positive results, and had not in a very long time.

  • Both sides were submitting a long list of demands, afraid that if they didn’t have as many as the other side, they wouldn’t have as many “traders” and their losses would outnumber their gains.
  • Both sides stuck to unreasonable positions, afraid that they would be the first to “give in” and would appear weak.
  • The mood at the table was generally miserable. You couldn’t be “pleasant” or the other side may misinterpret that for “happy” and use that to state that you really don’t need what you’re asking for.
  • You didn’t dare share any more information than absolutely necessary; always holding all of your cards close to your chest.
  • The reason why you wanted or needed an item wasn’t important. Why was never shared and the why question was never asked. If an item was in your long list of demands, it was deemed important, whether you needed it or not.
  • Costs associated with any proposal were guarded like State secrets, without exception, and by both sides.
  • It was all or nothing, and winning was everything!

Yet who was really winning? Each side had wasted hundreds of thousands of dollars over the years, only to have their collective agreement re-written by a board of arbitration. Decisions on business operations and the good and welfare of the employees were being made by a third party. Neither side was determining their own destiny, nor were they seeing their real interests met. No one was truly winning.

Benjamin Franklin has been credited with first coining the phrase, “The definition of insanity is doing the same thing over and over and expecting different results.” It was an insane notion to believe that repeating our same mistakes year after year would yield a freely negotiated collective agreement when it had so rarely done so in the past. While I’m pointing the finger at my teammates, it’s important to note as well that I wasn’t blameless. Over the years, with time spent on both sides of the table, I had picked up bad habits that were inhibiting me from effectively negotiating. Therefore, I took it upon myself to start the change by first altering my own bad habits.

I began by participating in seminars on successful bargaining skills. I read books and articles and finally had an opportunity to attend the Negotiation Skills program at Queen’s IRC. I came away from the program convinced that an interest-focused approach to bargaining was the ticket to successful negotiations and the key to breaking the bad habits back home.

Having sat through an interest-based bargaining seminar that was poorly received, while a member of the Fire Fighter’s Association Executive just a few years before, I knew that I could not walk in and change things overnight. I also felt that I could not announce a change in strategy. Instead of labeling the change as a shift to an interest-focused approach, I choose to subtlety introduce the changes, first in the preparation of our proposals and then at the bargaining table.

  • It’s not always necessary to label your new bargaining philosophy. Often a series of gentle nudges will work more effectively than pushing people in a direction they may not know they need to move in.
  • Know the people that you are dealing with. A thorough knowledge of their habits, wants, needs, desires and idiosyncrasies will help you to break those habits and tool your approach to getting them to buy into an interest-focused strategy.
  • It started with our management mandate. Gone were the “traders” that weighed down our proposals and wasted so much time. All items in our proposal package represented legitimate interests, and were truly needed. It wasn’t an easy sell to our team but it quickly sent a clear message to the other side.
  • As chief spokesperson on the management bargaining team, I started to ask the “why question” and listened to the answers, interpreting the interests of the Association in an effort to satisfy them while taking care of our own.
  • I took the time to explain our interests, whether or not the Association spokesperson asked for an explanation. It soon became clear that there were no traders or fillers. Our proposals all represented real needs.
  • I made every effort to be “nice” when possible, fully aware of the fact that the relationship both sides share outlasts our time across from each other at the bargaining table. That doesn’t mean we took the exercise any less seriously than in years gone by; we just didn’t sit stone-faced for the sole purpose of being miserable.
  • I shared costing data, including the cost of benefits.
  • Bargaining became a year-round activity. A thorough discussion of issues prior to formal negotiations meant we were not starting from scratch at the table, and that was a great time-saver.
  • A considerable amount of effort was put into identifying common interests and synergies, again, without labeling it as an interest-focused exercise.
  • We met as a team, post-negotiations, to identify what worked and why. Eventually, after some success, we did so with the other side as well.

I am not going to pretend that the transformation was easy or that we found instant success. However, we did successfully freely negotiate a collective agreement, on our own and without third-party intervention, during our first round of negotiations. As hard as old habits are hard to break, we proved it is not impossible. Our negotiating styles on both sides of the table have gone through a subtle transformation and we have successfully negotiated 12 consecutive years of collective agreements.

I have also witnessed a positive change in the day-to-day relationship between our senior management/HR team and the Association executive. A thorough review of the issues discussed at our regular labour/management meetings is a great way to prepare for an upcoming round of collective bargaining.

What was broken; appears to have been fixed!

About the Author

Andy MacDonaldAndy holds Queen’s IRC Certificates in Labour Relations, Advanced Labour Relations, and Organization Development Fundamentals, and he participated in the program on negotiations at the Harvard Law School. Andy holds a Bachelor of Science degree and has also studied at York University and the Ontario Fire College.Andy MacDonald was a member of the executive of the Brampton Professional Fire Fighters Association (BPFFA), IAFF Local 1068, for many years before joining the management ranks. He is currently the Fire Chief with the City of Brampton, Ontario. While a member of the BPFFA executive, Andy participated in collective agreement negotiations and gained the union’s perspective. As a member of the negotiating team on the other side of the table, Andy now plays a key role as a chief spokesperson of the Corporation’s bargaining team. Andy’s insight into negotiations from both sides of the negotiation table gives him an interesting perspective into the dynamics of collective bargaining.

He spends much of his free time aiding in many charitable causes and was the driving force behind the construction of his dream, the world’s first Fire/Life Safety Education Centre in Brampton. Andy’s other charitable exploits include rappelling off the CN Tower in 1985 to raise money for a Toronto burn unit, earning him a spot in the Guinness Book of Records.

New Labour Law Rule: Think Global, Act Local

In a case that pitted B.C. health unions against contentious labour legislation, the Supreme Court of Canada ruled last fall that collective bargaining is protected by the Charter of Rights and Freedoms. The decision significantly changes the lives of many Canadian labour law practitioners and policy-makers, says Kevin Banks, assistant professor in Queen’s University Faculty of Law.

Kevin practised labour and employment law for several years, and worked in senior posts in the federal public service—most recently as Director General, Labour Policy and Workplace Information. In this article, he talks about the decision and describes how lessons learned in international law can provide practitioners with guidance on constitutionally protected collective bargaining rights.

What did the Supreme Court of Canada decide, and what happens next?

The court gave the freedom to bargain collectively constitutional protection under section 2(d) of the Charter of Rights and Freedoms. That section protects freedom of association for all Canadians. For practitioners, international labour law can provide guidance in determining which aspects of our collective bargaining system should be treated as fundamental to freedom of association, which aspects represent policy choices among a range of viable alternative ways of protecting that freedom, and which ones should fall outside of the reach of constitutional protection.

Why was the Supreme Court’s decision such a surprise?

The Supreme Court reversed itself completely on the issue of whether collective bargaining was constitutionally protected or not, and did so within a relatively short time span—20 years in constitutional law is not a long time.

The court had previously said that collective bargaining was not constitutionally protected by section 2(d) of the Charter of Rights and Freedoms, which protects freedom of association, and had said so quite explicitly. In a trilogy of cases dealing with the right to strike in decided 1987, the court laid out an understanding of freedom of association clearly suggesting that collective bargaining was not protected under section 2(d). And the court specifically affirmed that this was the case about three years later in the case of the Professional Institute of the Public Service of Canada vs. Northwest Territories.

Now with B.C. Health, the court has reversed its line of thinking, and ruled that providing meaningful protection of freedom of association to those who choose to join a trade union includes protecting the freedom to bargain collectively.

What explains this remarkable reversal?

The judgment in B.C. Health lays out a completely different way of looking at the importance of collective bargaining in Canadian society.

How the court gets to this point is an interesting story. It essentially reverses its own previous understanding of Canadian labour history. The court says that collective bargaining is not properly characterized as a set of ‘modern rights’ that were simply created by legislation—which was its previous understanding. It says that this view was actually inconsistent with labour relations history in Canada, and that if you look back through that history, collective bargaining has been of fundamental importance to working people, and that’s why it was eventually incorporated into legislation. The court’s view now is that the statutes didn’t create the right; they simply afforded it some protection.

The court also rethinks what freedom of association means, and says that it must protect activities that can only really be performed by a collectivity. In the trilogy of cases I mentioned earlier, the court had said that the Charter did not protect an activity just because it was essential to giving an organization meaningful existence.

The majority on the court had been leery of protecting particular activities of associations because it did not see any basis for distinguishing between the activities of different associations. So it simply said that section 2(d) protected the freedom to establish an association, and any activities of associations that were already protected somewhere else in the Constitution, like freedom of expression. This left legislatures free to prohibit certain activities that really could only be carried out in association.

The court’s approach was criticized as formalistic because it treated all associations as essentially the same—a group of golfers coming together for a match had the same constitutional importance as a trade union seeking to bargain collectively. This, critics said, ignored the importance to Canadians and Canadian society of employees’ joining together to bargain collectively to improve their conditions of work.

What the court says in B.C. Health is that we have to move away from a formalistic equivalence between different kinds of associations. A book club is not the same thing as a trade union, and we need to look at these organizations in their social and historical context. You have to inquire into the significance of collective bargaining as a form of association on its own terms. That was the importance of the historical review.

The court also looks to the international legal context to understand the significance of collective bargaining in Canada. It finds that international law can help in interpreting Charter guarantees, and that a number of different conventions to which Canada is a party recognize the right of members of a union to engage in collective bargaining as part of freedom of association. So international law was also an important influence in the B.C. Health decision.

What key issues do Canadian practitioners need to understand about the judgment?

The court’s decision means that some aspects of our collective bargaining system are going to be given constitutional protection. But it is clear that not all aspects will. Practitioners are already being called upon to assess and present arguments on where the lines ought to be drawn.

The court provides some very general guidance on this issue. It says that the legislature must not substantially interfere with the ability of a union to exert meaningful influence over working conditions through a process of collective bargaining conducted in accordance with the duty to bargain in good faith. But that leaves open a number of major questions. What is meaningful influence? Does it include the ability to exert economic pressure, say by taking strike action? And what is substantial interference?

Unfortunately, the judgment is a bit vague with respect to both of these concepts, and this already giving rise to further litigation. Before the overall impact of the decision becomes clear, we’re going to have a number of other court decisions to begin to clarify some of these issues.

What are the implications for labour and employment law practitioners?

There are a number of direct and concrete implications. First, legislation that restricts the scope of issues that can be bargained collectively may be subject to challenge. This will have potential implications for public sector labour relations legislation in particular, which often does restrict issues that can be bargained collectively.

The decision also raises directly the question of whether the right to strike is protected. Other aspects of labour relations law that might be affected include legislation that purports to redefine the scope of bargaining units: can the government redraw bargaining units in any way that it sees fit, or will that amount to substantial interference?

Another way to look at it is through the lens of what the Constitution requires of government as an employer directly regulated by the Charter. The government needs to be careful about what sorts of methods of self-help or avoidance of collective bargaining it engages in that capacity.

What are practitioners going to be grappling with now?

In very concrete terms, they are going to be grappling with whether the kinds of laws and other government actions that I just mentioned substantially interfere with the capacity of employees to exert meaningful influence through collective bargaining. This means they will be advising and making arguments on whether such measures interfere with the capacity of employees and their unions to deal with issues of importance to them in a way that undermines good faith bargaining.

Over time, the case law that practitioners are involved in creating will sort out which aspects of our collective bargaining system should be treated as fundamental to freedom of association, which aspects represent policy choices among a range of viable alternative ways of protecting that freedom, and which ones should fall outside of the reach of constitutional protection.

No real attempt to separate the fundamental provisions from the ad hoc compromises that are inevitably part of the legislative process has been undertaken before. Now we’re going to be engaged in a debate and discussion about the core elements that really have to be protected constitutionally. This is an entirely new kind of legal analysis for us: it’s is an exercise we have never really engaged in within Canadian domestic labour law.

Where can practitioners look for guidance?

The court articulates a couple of propositions in B.C. Health that make international labour law directly relevant to deciding the scope of Charter protection.

The first is that, as the court says, the Charter should be presumed to provide at least as great a level of protection as was found in the international human rights document that Canada has ratified.

The second is that international labour obligations reflect principles that Canada has committed itself to uphold. And such commitments to principle along with the current state of international thought on them can be persuasive sources for interpreting the scope of Charter rights.

So we can draw some guidance from the body of international labour law that has been developed over the years as we begin to articulate what’s fundamental in Canada and should be constitutionalized.

After all, the international labour law community has had to make sense of very broad protections like freedom of association in the context of many different legal histories and cultures across many different countries. It has created a relatively small set of binding norms that say: “This is what any meaningful conception of freedom of association needs to include in the way of protections for collective bargaining.” It has also created a lot of persuasive doctrines about what kinds of alternatives are acceptable ways of protecting the freedom to bargain collectively.

For example, various committees of the International Labour Organization (ILO) have elaborated detailed doctrines, with supporting arguments, on when binding arbitration might be substituted for the right to strike. These doctrines often enjoy the support of management, government and labour representatives at the international level. So they might well have persuasive influence here in Canada as well.

If I’m right that the Supreme Court has made appeals to international labour law a lot more authoritative and relevant, then practitioners are going to need to get to know more about it: what sources of international labour law are binding, which ones are simply persuasive, and what makes them persuasive or not.

The ILO is probably the most important source for international labour law. There are also two important UN covenants: the International Covenant on Civil and Political Rights, and the International Covenant on Economic Social and Cultural Rights. Canada has ratified both of those.

International Labour Organization: http://www.ilo.org/global/lang–en/index.htm

Lessons in Interest-Based Bargaining

Build trust, be yourself, prepare for tradeoffs – and watch the junk food. Ford Canada’s Vice President of Human Resources Stacey Allerton Firth shares these and other secrets for successful interest-based bargaining.

In this article, Stacey draws on her experiences as a long-time senior HR executive and as lead negotiator for the 2005 Canadian Auto Workers National Negotiations team.

Interest-based bargaining (IBB) places an emphasis on co-operation and working together to come to agreement on complex issues.

One rule for IBB is that you need to meet other party where they are, and not where you wish they would be. If you think they are on another planet, my advice is to get out your space suit. Don’t get into saying, “How could they; why don’t they see this; only a moron wouldn’t get this.” Your job is to meet them where they are.

A second key consideration is relationship and trust building. Trust is what the whole interest-based, collaborative approach is based upon. Yet in my experience, it is often not attended to. People then wonder why things are not working smoothly.

In the words of Indira Ghandi, former Prime Minister of India: “You can’t shake hands with a clenched fist.”

Taking the attitude, “They have to earn my trust,” is a gamble. You have you give it to get it, so go out on a limb and take a risk. When no one wants to extend an olive branch, sometimes the process never gets off the ground.

Relationships are critical to success and are built up over time. Bargaining is no time to repair a damaged relationship. It has to be built before you sit at the table. You cannot have one relationship for two years and then show up and say, “Now we’re going to trust one another, behave in a collaborative way, forget the last two years when we’ve been at one another’s throats.” Your greatest credibility is built on your interactions away from the table; you will not be able to erase what was built before.

Be realistic in your expectations – one round of bargaining will not fix all the issues created over various contracts.

As well, be aware of your own reactions. There is a model called the Ladder of Inference, created by U.S. organizational learning expert Chris Argyris. If you are starting in a place where there is a lack of trust, the likelihood is high that you will interpret data in a particular way.

The ladder has the following steps: an event occurs; we select parts of the data; we use the meaning we assign to strengthen or shape beliefs; we act consistently with the beliefs we have formed. It is human nature to think this way, but you need to be aware when you are climbing the ladder and how it affects the process – and that there are other potential beliefs that could be better in guiding your actions.

With an interest-based approach, it is also important to keep in mind that you will be firm on the objectives and flexible on tactics. So the objectives don’t change – what you need to establish with the collective agreement – but as for the paths and tactics, realize that there are many potential ways to get there.

As well, tradeoffs frequently occur. The IBB approach takes more time than a positional approach, which just involves saying yes or no, and one party wears the other down. It takes more intellectual capital; you have to be willing to let go of tactics to get to your objective. It requires patience and reworking solutions. IBB often results in a new path that was not the proposal of either party.

There are many considerations around communications. First, you need to think about the long-term relationship and not just this bargaining process. I have had people say, “You finished the agreement nine days in advance – why didn’t you hang around? You could have gotten more.”

It is because I knew when we crafted an agreement that it met our objectives and their needs. I was not going to hang around and irritate and push, because it is not worth it. We were both happy with the outcome and we are in the relationship for the long term.

I would advise to share information early, openly, and often with union counterparts. It is good to start with facts and check for additional data from others involved in the process. So ask for the union bargaining team’s information too – you want to make sure you are aligned around costs, as this data is the basis for saying “Here’s why I need you to trade off for something else.”

You need to be willing to share your thoughts and feelings; and ask for the other party’s too. Be transparent about what you want. It is very important that if you need something, you say: “I really have to have X delivered,” or “This one element is killing me with the company, the industry, creating these problems, and I’m looking for you to help me on this round.” The sooner you are honest about that, the less time they waste on finding another solution that meets your interests.

Practicing active listening and doing so as an ally – respecting others’ views and beliefs without judgment – is a critical element of building trust in relationships.

Coupled with the need to listen as an ally is another skill: balancing advocacy and inquiry – or encouraging the other party to tell you his/her point of view, and sharing your views, beliefs, and feelings freely. There are many times in our business day when we need to do more than just listen. We need to reach agreement and to share our views in a way that encourages good decision-making.

Doing this ensures many views are heard; improves decision-making as more data and meaning are shared; and reinforces commitment to a course of action because views are openly expressed and considered.

Learning how to phrase things is important too. Saying, “Here’s what I’m thinking” has a different feel than, “Here’s my offer.”

I have also learned that early preparation pays off: the research, the team training (data, expectations, culture, communications), the relationship building. All are critical to success.

In terms of research, modeling financials well in advance is really important in an IBB approach. When you are in throes of negotiations and asking, “Can you cost that?” and are told, “I’ll get back to you next week,” it does not work. So plan in advance and cost all permutations of events in your economic mix. That lets you throw around ideas and the model can spit out cost in a matter of minutes. It is really important to keeping the pace going, to give you flexibility to consider different ideas.

Success in IBB also depends on your ability to be true to your organization’s style and you own identity in the collective bargaining process. It is the best way to build trust and credibility – or harm it. Be your own person in this process.

I would also advise taking measured risks in changing the process to achieve a different outcome. Once in negotiation I was told what the usual process was, and I asked, “What if we do it another way?” We tried it, but really were not sure what would happen. In this case it worked well. The point is that you do not always have to do things the way they were done – especially if you want the outcome to be different.

Finally, remember to maintain some fun and team-building during the process. Collective bargaining does not have to be an all-night-long endurance contest to see who can still make wise decisions on the least amount of sleep. During one negotiation we actually had bargaining fitness teams. People got credit for sleeping for eight hours, for working out, for going home to spend time with their families. We had days where no one was allowed to eat junk food: there were more arguments about what constituted junk food than we had with the union.

It was goofy thing but it built relationships, and that carried over into bargaining process and helped to create a collaborative atmosphere. I am also convinced it helped us move as fast as we did in that particular negotiation.

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