There’s one way out for both parties: get an arbitrator involved
A CUPE worker picketing in London, Ont., on Monday. Photo by Mike Hensen/The London Free Press/Postmedia Network Did the Ford government blink?
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On Monday, Ontario agreed to withdraw Bill C-28, including its controversial invocation of the notwithstanding clause, provided the union representing education workers in the province return to the bargaining table and end its strike, made illegal by the bill in question.
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CUPE, which had been asking to continue talks, responded quickly by ending the illegal strike — at least for now.
So did the province give in, or was it CUPE that blinked? The union was clearly going to strike, whether bargaining continued or not, and now it isn’t.
CUPE now threatens that, if there is no progress, it will resume strike action. The government threatens that, if CUPE does that, it will re-institute the bill. A true Mexican standoff.
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Given the furor which developed, the government is not anxious to re-invoke the notwithstanding clause to end the strike. But given the position that it has taken — that it will not permit strikes which prevent students from again attending school — it has left itself little room to manoeuvre if the strike resumes.
The government has another, bigger, problem in satisfying CUPE’s demands and ending the prospect of a strike. It has declared that it doesn’t have the money for larger increases since the province is facing so many other critical needs. Although it has not said this explicitly (but it is its primary motivator), it knows that anything it offers will be a precedent for all of its upcoming, massive public sector bargaining. And this is a government that pledged to cap public sector increases (and did so in its first term).
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And there is yet another problem. This particular group of workers is objectively, underpaid. And 2.5 per cent, for that portion of them who already can’t make ends meet and have faced an eight-per-cent-plus cost-of-living increase in the last year, is objectively insufficient and appears callous to Ontarians who are now actively scrutinizing what occurs.
From CUPE’s perspective, if it goes back on strike, the government will reinstitute the notwithstanding clause and it will have lost its major victory in having it withdrawn — a victory not just for it but for the entire union movement.
CUPE also would risk the threat of $220 million a day in fines under the bill, which would wipe it out instantly.
An irresistible force and an immovable object well describes these parties‘ dilemma.
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Of course, it is possible that negotiations will resolve the dispute and the government will be able to explain to other unionized public sector bargaining units that this group was special because, compared to others, it genuinely was underpaid and did not receive a living wage.
But that would be a hard sell as other unions focus only on the percentage agreed to. That is what unions do.
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Article content If they get to a bargaining impasse, the resolution should be that they agree to let an arbitrator decide what the employees will receive. The government can rationalize such a solution because it feels these workers provide an essential service — its very reason for invoking the notwithstanding clause — and essential service workers customarily have arbitrated collective agreements. The union can rationalize it because arbitration is in the economic interest of these employees. Arbitrators historically provide much more than unions receive from bargaining or striking. And the workers will not face further lost wages from a strike.
I could easily envisage an arbitrator awarding a very significant increase to this particular group of workers, especially its lower paid ones. CUPE can declare victory and the government can say, at the bargaining table to other unions, that the arbitrated increase was not something that it negotiated or agreed to. Everybody retreats to a defensible position, the underpaid workers are happy and life moves on.
Howard Levitt is senior partner of Levitt Sheikh, employment and labour lawyers with offices in Toronto and Hamilton. He practices employment law in eight provinces. He is the author of six books including the Law of Dismissal in Canada.