Mediation, Arbitration, Mediation-Arbitration, and Back-To-Work Legislation

Last week, Canada’s Parliament started the process of passing a law to end the rotating strikes at Canada Post. The Canadian Union of Postal Workers (CUPW) has been negotiating with Canada Post for more than a year for a new collective agreement, and the union is showing it’s serious about its bargaining demands by strategically timing its strike actions for when people and small businesses are relying on Canada Post’s services for holiday deliveries. However, complaints about backlogs of undelivered mail and the lack of progress in negotiations apparently made the federal government decide it was time to intervene in the bargaining process.

There seems to be a lot of confusion about the types of interventions that can be used to resolve bargaining disputes – particularly mediation-arbitration, which is not used very often, but which is what this law proposes to settle the contract. An explanation of each type of intervention will help in understanding the potential outcomes of the Canada Post strike.

  • Mediation:  A mediator, chosen by the union and employer or by the government, observes the actual bargaining between the union and the employer. Based on what they see, the mediator makes suggestions to each or both of the parties on how they could reach a mutually acceptable agreement. Sometimes the suggestions are for resolutions on items that the parties can’t agree on; sometimes the suggestions are about different or better ways to conduct the bargaining itself. However, the key word here is “suggestions”. A mediator doesn’t have the power to impose a solution to the bargaining disputes. Their role is to advise the parties and to help them reach an agreement on their own.  A mediator has been working with CUPW and Canada Post during their negotiations for the past few weeks.

 

  • Arbitration: An arbitrator, unlike a mediator, has the power to resolve bargaining disputes by making a solution to those disputes, which then becomes part or all of the new collective agreement between the parties. In most arbitration processes, the union and the employer each submit their bargaining proposals to the arbitrator, who then creates a solution to each disputed issue, based on those proposals. In some occupations, such as policing or firefighting – where a work stoppage would endanger the public’s health or safety – workers aren’t allowed to go on strike. If the union and the employer can’t reach a new collective agreement through bargaining, then arbitration is used to settle the bargaining disputes. Canada Post proposed arbitration during this round of bargaining with CUPW, but then dropped that proposal.

 

  • Mediation-arbitration: As the name suggests, this method of resolving bargaining disputes combines mediation and arbitration. A mediator attempts to help the union and employer reach an agreement through negotiation. If that doesn’t work, then the mediator becomes an arbitrator and settles the bargaining dispute that way. This process is designed to save time in resolving disputes – by the time the mediator becomes an arbitrator, he or she already knows the parties’ disagreements very well, and presumably can then settle them more quickly. The process is also supposed to give the parties an incentive to settle their disputes with the help of the mediator, since they know that if they don’t, a solution will be imposed on them through arbitration.

 

  • Back-to-work legislation: Governments have the power to pass legislation that ends a strike or lockout, and puts the unionized employees back to work (hence the name of this type of law). It’s important to know that Canadian governments can only do this to their own employees, or to unionized employees under the jurisdiction of that government’s labour legislation. A private sector employer can’t pass a law to order its employees to stop their strike and get back to work. Traditionally governments in Canada were respectful of their exceptional power in bargaining, in being able to end disputes unilaterally through legislation, and only used back-to-work laws occasionally. But the rate at which back-to-work legislation has been employed to end bargaining disputes or strikes in Canada has increased steadily since the 1980s.

Members of the Penticton local of the Canadian Union of Postal Workers (CUPW) on the picket line November 8, the day that their local participated in a rotating strike. (credit: Penticton Western News)

The proposed law to end the Canada Post dispute combines a back-to-work order with mediation-arbitration. This is something of a change from how Canada’s previous federal government often dealt with federal labour stoppages, which was to pass back-to-work legislation sooner rather than later.

However, it’s unclear how effective mediation-arbitration will be in this particular situation. Some researchers have suggested that an unexpected side effect of mediation-arbitration is that the parties don’t take the mediation part of the process seriously. They know that the mediator can arbitrate a settlement if necessary, so they have no incentive to settle messy or challenging disputes themselves; they can turn those over to the arbitrator to settle for them. In the Canada Post situation, the parties may have even less incentive to resolve their disputes on their own, because of the back-to-work order which will end the strike regardless of whether they settle an agreement. Allowing mediation-arbitration may be simply window dressing to make the government look sympathetic to the postal workers’ rights while still shutting down their rotating strikes.

CUPW has also questioned whether this back-to-work legislation violates Canada’s Charter of Rights and Freedoms. The outcomes of several rulings by the Supreme Court of Canada have established that the right of workers to go on strike is part of the right to collective bargaining that is supported by the Charter’s guarantee of “freedom of association”. And in 2016 an Ontario court ruled that federal back-to-work legislation passed in 2011 by the previous federal government to end a strike at Canada Post did violate the postal workers’ right to strike, so there may be some precedent for CUPW’s position. The union has indicated that it plans to file a court challenge against the government’s back-to-work law; that obviously won’t stop the law from going into effect if it is passed, but if the case goes forward, it could develop into a difficult situation for a government that has actively presented itself as supporting labour unions and workers’ rights. It’s also interesting that Jessica MacDonald, Canada Post’s CEO, was a high-ranking staffer in two provincial governments in British Columbia that were notably anti-union. It’s an interesting and unusual mix of circumstances – we’ll see what happens.

One comment

  1. Wow….thank you, Fiona….i had no idea Jessica MacDonald was CEO of Canada Post….that explains a lot…and also thank you for dealing with what is actually in the legislation and the terms under which the dispute will be settled….i’ve been tearing my hair out at the pathetic reporting on Bill C-89, with virtually no mention of the details of the bill, itself…illustrating once again how labour reporters are missed…few, if any reporters, know anything about the way labour relations work, what’s important, or care…i also note that no one mentions exactly what the latests offers/demands are at the table, beyond broad-based descriptions by the union….or simply that Canada Post has made a new offer….gee, thanks…sad sad sad (personally, i think this bill is much fairer than the draconian Harper back to work legislation in 2011, which was eventually ruled unconstitutional..for one thing, i gather the mediator/arbitrator is specifically instructed to consider pay equity, and binding arbitration is certainly a better way to settle this intractable dispute than imposing a settlement…plus, i gather the fines for contravention are far less….and, unlike the pre-emptory Harper postal workers bill, which came in just as mediation was about to begin, or thereabouts, the parties have been bargaining for more than a year….i cant see how Bill C-89 could be ruled unconstitutional…..) zzzzz it’s so nice to see someone writing about this situation who actually knows something about labour….yahoo….cheers! Laborious Mickle

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