by Daniel Pugen
McCarthy Tetrault
It’s been a cold, wintry start to 2008 (at least in Canada). The cobwebs from New Year’s Eve have passed and New Years’ resolutions already have been broken. As February began, the groundhog indicated six more weeks of winter and Ontario employees were counting down the days until Family Day (February 18, 2008), Ontario’s new statutory holiday.
People are back from vacation and work is in full swing. Phones are ringing, faxes are churning, e-mails are popping up on computer screens. In the midst of the hum of the office as you think of the priorities for the year ahead, it occurs to you that your current collective agreement is set to expire in 2008.
Even if the expiration date is months down the road, it’s important to be prepared and ready for collective bargaining.
Collective bargaining takes up significant time, effort, and resources, and it often seems like you’re just settling one collective agreement before you’re back for the next round. As a result, it’s common that employers start too late to prepare for collective bargaining.
However, to get the best results, it’s important to be prepared as early as possible. What can you do at an early stage to prepare for bargaining? What can you do to streamline the bargaining process?
Below we have set out some tips and strategies that may help to ensure that your next round of collective bargaining goes smoothly (and in your favor), taking into account the Canadian legal regime for bargaining:
1. Do your homework. Consider:
- collecting and reviewing internal data on grievances/arbitrations;
- collecting data with respect to the bargaining unit and relevant cost issues, such as benefits costs, sick leave costs, or overtime costs;
- obtaining a legal review of the existing collective agreement and determining whether anything needs to be revised to reflect changes in legislation;
- gathering and reviewing current information on terms of settlement, including wage increase information, pay and benefit surveys, and the terms of other collective agreements in your industry; and
- reviewing the company’s short-tem and long-term business goals to ensure alignment of bargaining positions and goals.
2. Develop company goals and proposals for bargaining in advance.
3. Review with management all problems and concerns with the existing union agreement.
4. Develop a strategic plan for the bargaining process. To ensure you are ready for any steps the union may take, consider issues such as:
- whether you (not the union) should give notice to bargain;
- the timing of any required notices to government authorities;
- whether conciliation and/or mediation is mandatory prior to a strike or lockout;
- the length of time it takes to schedule conciliation or mediation with the government;
- how likely it is that a strike or lockout will occur (and therefore what contingency plans should be in place and when);
- depending on which province or federal jurisdiction you’re in, whether you can have replacement workers and what the complement of replacement workers could look like;
- whether your organization can continue operations during a strike or lockout;
- the best timing of a strike or lockout to occur; and
- what the labor board processes for dispute resolution will be.
5. Develop a communications strategy to deal with all types of communications, including:
- internally among the management team;
- during bargaining between the two negotiating committees;
- between the employer and the bargaining unit employees; and
- by the employer to third parties such as customers, clients, suppliers, and the media.
6. Prepare for the bargaining process and logistics. Where will the bargaining take place? How many people will be on the negotiating teams? How will employees on the union’s team be released from work? How will they be paid?
It’s most important to recognize that under Canadian labor laws, the required process will vary from one jurisdiction to another. There is variation in terms of notices that must be given to the government at various stages of the bargaining process and whether and when one must seek government assistance for conciliation or mediation prior to a strike or lockout.
These requirements will significantly affect the timing and pace of your bargaining process. You must therefore understand them and build them into your planning process at an early stage.